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581_nda-15 | 581_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
581_nda-10 | 581_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
581_nda-2 | 581_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Contradiction |
581_nda-1 | 581_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Not mentioned |
581_nda-19 | 581_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
581_nda-12 | 581_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
581_nda-20 | 581_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
581_nda-3 | 581_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
581_nda-18 | 581_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Not mentioned |
581_nda-7 | 581_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
581_nda-17 | 581_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Not mentioned |
581_nda-8 | 581_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 (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
581_nda-13 | 581_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
581_nda-5 | 581_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
581_nda-4 | 581_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit (d)(6)
NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).
Recitals
WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”);
WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;
WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and
WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:
(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW
CONFIDENTIAL
RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire.
(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.
(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.
(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;
(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care);
(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and
(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party.
4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.
(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.
(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.
(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.
(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.
5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof:
(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records;
(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure;
(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party;
(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or
(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.
6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party.
7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement.
8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.
10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.
11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties.
13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.
If to NEW RIVER:
New River Pharmaceuticals Inc.
The Governor Tyler
1881 Grove Ave
Radford, VA 24141
Attention: Legal Department
Fax No.: (540) 633-7939
If to SHIRE:
Shire Pharmaceuticals, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087
Attention: Legal Department
Fax No.: 484-595-8163
If to L.E.K.:
L.E.K. Consulting LLC
28 State Street
16th Floor
Boston, MA 02109
Attention: Mike Clabault
Fax No.: 617-951-9392
Any party may change its address for notices by giving the other party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.
15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).
17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought.
18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have.
19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement.
20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party.
22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party.
23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.
NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC
By: -s- Randal J. Kirk By: -s- Jon Piper
Name: Randal J. Kirk Name: Jon Piper
Title: President & CEO Title: Vice President
SHIRE PHARMACEUTICALS, INC
By: -s- XXXXX
Name: Scott Applebaum
Title: Secretary
| Entailment |
583_nda-11 | 583_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
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Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Not mentioned |
583_nda-16 | 583_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-15 | 583_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Not mentioned |
583_nda-10 | 583_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-2 | 583_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
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Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Not mentioned |
583_nda-1 | 583_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Not mentioned |
583_nda-19 | 583_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
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Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-12 | 583_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-20 | 583_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
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Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-3 | 583_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-18 | 583_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
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Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-7 | 583_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-17 | 583_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
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Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Not mentioned |
583_nda-8 | 583_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: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-13 | 583_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
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Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-5 | 583_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
583_nda-4 | 583_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: CONFIDENTIALITY AGREEMENT
June 12, 2003
Genzme Corporation
One Kendal Square Cambridge, MA 02139
In connection with your consideration of a possible business combination transaction (a "Transaction") with SangStat Medical Corporation, we expect to make available to one another certain nonpublic information concerning our respective business, financial condition, operations, assets and liabilities, including, without limitation, technical information and information regarding intellectual property rights. As a condition to such information being furnished to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any nonpublic information concerning to other party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the form of communication) which is furnished hereunder to a party or to its Representatives now or in the future by or on behalf of the disclosing party (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this Agreement.
(1) Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents (whether in paper, electronic or any other form) prepared by each or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public and would otherwise constitute Evaluation Material hereunder. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives, (ii) was within the receiving party's possession prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not known by the receiving party to the bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iii) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party or any other party with respect to such information, (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality, (v) is independently developed by the receiving party or any of its Representatives without use of Evaluation Material and can be proved by competent evidence, (vi) is disclosed under operation of applicable law or regulation, or (vii) is disclosed by the receiving party or its Representatives with the discloser's prior written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by each party that any exchange of information under this Agreement shall be solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto and not to affect, in any way, each party's relative competitive position to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall only be that information which is reasonably necessary to a Transaction and that information which is not reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to review information requests so as to comply with such standard.
(3) Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purposes of evaluating a possible Transaction between the parties and, if the parties determine to proceed with a Transaction, the negotiation, execution and performance of a definitive agreement with respect thereto, and that the disclosing party's Evaluation
Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the purposes stated above any of the other's Evaluation Material in any other manner whatsoever; provided, however, that (i) the receiving party may make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of such information may be disclosed to the receiving party's Representatives which need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are informed of the confidential nature of such information and are subject to confidentiality and non-use obligations at least as restrictive as defined herein. Each party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who have received material, nonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(4) Non-Disclosure. Subject to the above, each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including that status thereof) provided, that a party may make such disclosure if such party determines,with the advice of counsel, that such disclosure is required by applicable law or regulation or under any listing agreement with respect to such party's securities. In such event, the disclosing party shall use its best efforts to give prompt advance written notice to the other party to the extent practicable under the circumstances.
(5) Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by reasonably cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal.
(6) Termination of Discussions. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will inform the other party of that decision. In that case, or at any time upon the written request of either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all Evaluation Material that was furnished to the receiving party or its Representatives by or on behalf of the disclosing party, by whichever method requested by the disclosing party, pursuant hereto. In the event of such a decision for request, all other copies, extracts and summaries of the disclosing party's Evaluation Material prepared by the receiving party shall be destroyed and, except as provided herein, no copy thereof shall be retained. In no event shall the receiving party be obligated to disclose or provide the copies, extracts and summaries of the disclosing party's Evaluation Material prepared by it or its Representatives to the disclosing party. Notwithstanding the foregoing, the receiving party may retain one (1) copy of the disclosing party's Evaluation Material solely for purposes of monitoring its compliance with this Agreement. Notwithstanding the return or distruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material make available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Standstill. Until the earlier to occur of (i) a Significant Event with respect to the other party and (ii) the date two (2) years form the date first set forth above, each party and its direct and undirect majority-owned and controlled subsidiaries will not (and each party and its direct and indirect majority-owned and controlled subsidiaries will not assist other to), directly or indirectly, without the prior consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the other party's so its subsidiaries' assets (other than in the ordinary course of business) or business or any voting securities issued by the other party which are, or may be, entitled to vote in the election of the other party's directors ("Voting Securities"), or any rights or options to acquire such ownership, including from a third party, other than pursuant to the Transaction; or
(b) make, or in any way participate in, any solicitation of proxies or consents with respect to any Voting Securities of the other party, become a participant in any proxy context with respect to the other party; or seek to advise or influence any person or entity with respect to the voting of any Voting Securities; or demand or copy of the other party's stock ledger, list of its stockholders or other books and records for purposes of any of the matters described in (a), (c), (d) or (e) or this clause (b); or call or attempt to call any meeting or the stockholders of the other party; or
(c) otherwise seek to control or influence the management, Board of Directors or policies of the other party; or
(d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the matters described in (a), (b) or (c) above; or
(e) propose, attempt or announce an intention, to take any of the actions described in (a), (b), (c) or (d) above.
The term "Significant Event" means, with respect to either part, any of:
(i) the acquisition, or public announcement of an intention to acquire, by a person or "group" (as such term is used in Section 13(d)(3) of the Exchange Act) (a "13D Group") (not including the other party), by way of tender or exchange offer or otherwise, of voting securities representing ten percent (10%) or more of the then-outstanding voting securities of such party;
(ii) entry into a letter of intent or agreement by such party regarding any merger, sale, reorganization, recapitalization or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of a person or 13D Group (not including the other party) or twenty-five percent (25%) or more of the then-outstanding shares of common stock of such party would be owned by persons other than the then-current holders of shares of common stock of such party, or which would result in all or a substantial portion of such party's assets being sold to any person or 13D Group (not including the other party);
(iii) the making by such party of a public announcement of its determination to pursue (A) the sale or other disposition of a majority of the shares of such party's outstanding common stock, (B) the sale or disposition of all or substantially all of such party's assets or (C) a similar sale or change of control transaction; or
(iv) the material breach by such party of this Agreement.
(9) Duration of Confidentiality and Non-use Obligation. The parties agree that the obligations pertaining to confidentiality and use of the Evaluation Material set forth in sections (2) through (6) above, and this clause (9), shall survive the expiration or termination of this Agreement until the expiration of the period ending five (5) years after the date first set forth above.
(10) No solicitation. During the term of this Agreement, neither party shall, without the prior written consent of the other party, directly or indirectly solicit the employment of any employee of such other party, unless such employee seeks employment on an unsolicited basis or in response to general solicitations or advertising or third party employment agencies, provided that such general solicitations or advertising is made, taken out and distributed in the ordinary course and not in an effort to specifically target employees of the other party.
(11) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered by the parties. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except 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. Both parties further acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material to the receiving party under this Agreement, to reject any any all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(12) Waiver. It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the non-breaching party shall be entitled to seek to obtain equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In no event shall either party be liable for consequential or punitive damages.
(15) Governing Law; Forum. This Agreement shall be governed by an construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State. Any dispute between the parties arising out of or connected to this Agreement or its enforceability or interpretation, including any injunctive relief, shall be brought and resolved solely in the federal or state courts located within the Southern District of New York, and the parties hereby submit to the personal jurisdiction of said courts.
(16) Term. Except as explicitly provided in sections (8) and (9) above, this Agreement shall terminate one (1) year from the date first set forth above.
(17) Counterparts. This Agreement may be executed in two counterparts, which together shall be considered one and the same agreement and all become effective when such counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.
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Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Confidentiality Agreement shall become a binding agreement between you and SangStat Medical Corporation.
Very truly yours,
SANGSTAT MEDICAL CORPORATION
By: /s/ ADRIAN ARIMA
Name: Adrian Arima
Title: Senior Vice President and General Counsel
Accepted and Agreed as of the date first written above:
GENZYME CORPORATION
By: /s/ RICHARD DOUGLAS
Name: Richard Douglas
Title: Sr. V.P. Corporate Development
[SIGNATURE PAGE TO CONFIDENTIALITY AGREEMENT]
| Entailment |
587_nda-11 | 587_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Not mentioned |
587_nda-16 | 587_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Entailment |
587_nda-15 | 587_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Entailment |
587_nda-10 | 587_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Not mentioned |
587_nda-2 | 587_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Contradiction |
587_nda-1 | 587_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Not mentioned |
587_nda-19 | 587_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Entailment |
587_nda-12 | 587_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Not mentioned |
587_nda-20 | 587_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Contradiction |
587_nda-3 | 587_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Not mentioned |
587_nda-18 | 587_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Entailment |
587_nda-7 | 587_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Contradiction |
587_nda-17 | 587_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Not mentioned |
587_nda-8 | 587_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 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Not mentioned |
587_nda-13 | 587_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Not mentioned |
587_nda-5 | 587_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Not mentioned |
587_nda-4 | 587_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: EXHIBIT 10.5
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
RECITALS
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants. Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants.
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whether created by Kennedy or others, which shall come into Kennedy’s custody or possession during the Restricted Period shall be and are the exclusive property of Company to be used by Kennedy only in the performance of his or her duties for the Company. All such Records or copies thereof in Kennedy’s custody or possession shall be delivered to the Company (i) upon any request by the Company and, in any event, (ii) upon the termination of the Restricted Period. After any such delivery, Employee shall not retain any such Records, copies thereof, or any other tangible property of Company.
(c) Kennedy agrees that his obligations under Sections 2(a) and 2(b) above also extend to such types of information, know-how, records, and other tangible property of the Company’s customers, suppliers, or other third parties which may have disclosed or entrusted the same to Company or Kennedy in the course of Company’s business.
3. Other Agreements; Indemnification. Kennedy hereby represents that, except as he has disclosed in writing to Company, Kennedy is not bound by the terms of any agreement with any previous employer or other party to refrain from (i) competing, directly or indirectly, with the business of such previous employer or any other party or (ii) using or disclosing any trade secret or confidential or proprietary information in the course of the Restricted Period. Kennedy further represents that his performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data acquired by Kennedy in confidence or in trust prior to the date of the Restricted Period, and Kennedy will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others. Kennedy hereby indemnifies and agrees to defend and hold the Company harmless from and against any and all damages, liabilities, losses, costs, and expenses (including, without limitation, attorneys’ fees and the costs of investigation) resulting or arising directly or indirectly from any breach of the foregoing representations.
4. Necessity of Covenants; Injunctive Relief. Kennedy acknowledges that a breach or threatened breach of this Agreement would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Kennedy of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction.
5. No Employment Contract. Employee understands that this Agreement does not constitute a contract of employment by the Company.
6. Company Acknowledgement of Kennedy’s Conduct of Medical Device Business. The Company acknowledges that Kennedy is engaged, and will continue to engage, in the manufacture and sale of medical devices (the “Medical Device Business”) utilizing processes, know-how and precision machining substantially similar to those utilized by the Company in connection with the Autocam Business. The Company agrees that nothing contained herein shall in any way limit Kennedy’s ability to engage in the Medical Device Business or to utilize such processes, know-how and precision machining in connection with such Medical Device Business.
7. General.
(a) With respect to the covenants and representations set forth in Sections 1, 2, and 3 of this Agreement, the “Company” shall include (i) any corporation, partnership, limited liability company, or other business entity of which an aggregate of 50% or more of the outstanding voting stock, membership interests, or other ownership interests are at any time directly or indirectly owned by the Company, (ii) Autocam, and (iii) the Subsidiaries.
(b) This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the state of Delaware, without regard to the choice or conflict of law rules of such state.
(c) In the event any suit or proceeding against Kennedy to enforce any of the provisions of this Agreement or on account of any damages sustained (or alleged to have been sustained) is brought by the Company by reason of Kennedy’s violation or alleged violation of any of the provisions of this Agreement, the parties agree that, in addition to other costs and damages, all reasonable costs and attorneys’ fees incurred by the party prevailing in such action shall be paid by the other party.
(d) This Agreement shall be effective as of the Closing Date of the Merger. If the Closing does not occur, this Agreement shall be void and of no further force and effect and there shall be no liability on the part of any party hereto, except that the provisions of Section 2 shall survive. The duties and obligations of Kennedy, with respect to any rights accruing to Company under this Agreement during the term of the Restricted Period and thereafter, shall survive any termination of the Restricted Period.
(e) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses
If to Company, to:
NN, Inc.
2000 Waters Edge Drive
Johnson City, TN 37604
Attention: James H. Dorton
Facsimile: 423-743-7670
Email: [email protected]
With a copy to (which shall not constitute notice):
Husch Blackwell LLP
4801 Main St., Suite 1000
Kansas City, MO 64112
Attention: John D. Moore
Facsimile: 816 983-8000
Email: [email protected]
If to Kennedy, to:
John C. Kennedy
4162 East Paris Avenue, SE
Kentwood, MI 49512
Facsimile No.: 616-698-6876
Email: [email protected]
With a copy to (which shall not constitute notice):
Law Weathers, PC
333 Bridge Street, Suite 800
Grand Rapids, MI 49504
Attention: Tony Barnes
Facsimile: 616-913-1222
Email: [email protected]
(g) This Agreement embodies the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
(h) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, legal representatives, and permitted assigns.
(i) The headings used in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not be used as an aid to the interpretation of this Agreement.
(j) Each party will do all acts and things and execute all documents and instruments which the other party reasonably requests in order to carry out or give further effect to the provisions of this Agreement.
(k) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
NN, INC.
By: /s/ Richard D. Holder
Name: Richard D. Holder
Title: Chief Executive Officer and President
JOHN C. KENNEDY
/s/ John C. Kennedy
[Signature Page to Kennedy Noncompete]
| Entailment |
588_nda-11 | 588_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Not mentioned |
588_nda-16 | 588_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Not mentioned |
588_nda-15 | 588_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Not mentioned |
588_nda-10 | 588_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Entailment |
588_nda-2 | 588_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Not mentioned |
588_nda-1 | 588_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Not mentioned |
588_nda-19 | 588_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Not mentioned |
588_nda-12 | 588_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Entailment |
588_nda-20 | 588_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Entailment |
588_nda-3 | 588_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Entailment |
588_nda-18 | 588_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Entailment |
588_nda-7 | 588_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Entailment |
588_nda-17 | 588_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Not mentioned |
588_nda-8 | 588_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: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Entailment |
588_nda-13 | 588_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Entailment |
588_nda-5 | 588_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Entailment |
588_nda-4 | 588_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
September 12, 2007
Vector Capital Corporation
456 Montgomery Street, 19th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
In connection with the expression of interest by Vector Capital Corporation (“Vector”) in a transaction with Captaris, Inc. (“Captaris”), Captaris will make available to Vector certain confidential and proprietary information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being made available to Vector and Vector’s potential financing sources and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), Vector agrees to treat any information concerning Captaris (whether prepared by Captaris, its advisors or otherwise and irrespective of the form of communication) which is furnished pursuant to this letter agreement to Vector or to its Representatives now or in the future by or on behalf of Captaris (such information herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth. The term “person” as used in this letter agreement shall be broadly interpreted to including the media and any corporation, partnership, group, individual or other entity.
The term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by Vector or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the information furnished to Vector or its Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Vector or its Representatives in contravention of this agreement, (ii) was within Vector’s possession prior to its being furnished to Vector by or on behalf of Captaris pursuant hereto, provided that the source of such information was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; (iii) becomes available to Vector on a nonconfidential basis from a source other than Captaris or any of its Representatives, provided that such source was not known by Vector to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Captaris or any other party with respect to such information; or (iv) is independently developed by Vector without the use of any Evaluation Material and without any other violation of this agreement.
Vector hereby agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible transaction between the parties, that the
Evaluation Material will be kept confidential and that Vector and its Representatives will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) Vector may make any disclosure of such information to which Captaris gives its prior written consent and (ii) any of such information may be disclosed by Vector to its Representatives who need to know such information for the sole purpose of evaluating and implementing a possible transaction between the parties, who shall keep such information confidential and who are provided with a copy of this letter agreement. In any event, Vector shall be responsible for any breach of this letter agreement by any of its Representatives, and Vector agrees, at its sole expense, to take reasonable measures (including but not limited to court proceedings) to restrain its Representatives from disclosure or use of the Evaluation Material in contravention of this agreement.
In addition, except as required by law or any rule of any self-regulatory organization, each of Captaris and Vector agrees that, without the prior written consent of the other party, it and its Representatives will not disclose to any other person the fact that the Evaluation Material has been exchanged, that discussions or negotiations are or may be taking place concerning a possible transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) unless such first party has determined in good faith, after consultation with outside counsel, that such disclosure is required in order to avoid a violation of law or any rule of any self-regulatory organization.
In the event that (i) Vector or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the Evaluation Material furnished by Captaris or (ii) Vector or any of its Representative or Captaris or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or law or any rule of any self-regulatory organization) to disclose any of the information described in the preceding paragraph (the “Other Confidential Information”)), then Vector or Captaris, as applicable (the “Disclosure Party”) shall, to the extent permitted by applicable law, provide Captaris or Vector, as applicable (the “Other Party”) with prompt written notice of any such request or requirement so that the Other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of any protective order or other remedy or the receipt of a waiver by the Other Party, the Disclosure Party or any of its Representatives determines in good faith, after consultation with the Disclosure Party’s outside counsel or such Representative’s counsel, as applicable, that it is legally compelled to disclose Evaluation Material (or any of the Other Confidential Information), the Disclosure Party or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material or Other Confidential Information that it determines in good faith, after consultation with such counsel, it is legally required to be disclosed, provided that the Disclosure Party exercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material and the Other Confidential Information, including, without limitation, by cooperating with the Other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material and the Other Confidential Information.
If either party decides that it does not wish to proceed with a transaction, it will promptly inform the other party of that decision. In that case, or any time upon the request of a party for any reason, Vector will promptly, at Vector’s option (i) return to Captaris and/or (ii) destroy all Evaluation Material (and all tangible copies thereof) furnished to it or its Representatives by or on behalf of the other party pursuant hereto, and in either case no copies thereof shall be retained except that, any of the foregoing notwithstanding, that portion of the Evaluation Material that may be found in analyses, compilations, studies, or other documents prepared by Vector’s Representatives, such Representatives’ agents, attorneys or employees, and oral or electronic Evaluation Material will be held by such Representatives and kept subject to the terms of this agreement or destroyed to the extent practicable and permitted by law. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, (i) financial advisors to the parties may retain copies of the Evaluation Material and Other Confidential Information (including Evaluation Material and Other Confidential Information) stored on electronic, magnetic or similar media) in accordance with policies and procedures implemented in order to comply with legal and regulatory requirements and to demonstrate such financial advisor’s compliance with its obligations, and (ii) Representatives that are accounting firms may retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, and furthermore our Representatives that are accounting firms may disclose Evaluation Material to the extent required by law, rule, regulation or applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder.
Vector understands and acknowledges that, except pursuant to a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, (i) neither Captaris nor any of’ its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, (ii) neither Captaris nor its Representatives shall have any liability to Vector or to any of its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, and (iii) only those representations or warranties which are made in any such final definitive agreement will have any legal effect.
Captaris agrees that, for a period ending eight weeks after the date of this letter agreement, it will afford Vector and its Representatives, reasonable access to the information described in Exhibit A and the books, contracts, commitments and records of Captaris and its subsidiaries relevant thereto, unless and until Vector and Captaris have reached a non-binding consensus regarding basic deal terms, at which time access will broaden to include all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Captaris and its Subsidiaries as Vector may reasonably request and that is in the possession or control of Captaris.
In consideration of the Evaluation Material being furnished by Captaris hereunder, Vector hereby agrees that, for a period of twelve months from the date hereof, it will not, and will not encourage or assist its affiliates to, solicit for employment (a) any officers or other senior key employees of Captaris or any of its business units so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris, and (b) any of the other employees of Captaris or any of its business units with whom Vector has had contact or who Vector first became aware of during the period of its investigation of Captaris, so long as they are employed by the Captaris or its business units, without obtaining the prior written consent of Captaris. Nothing in the foregoing clause (b) shall preclude Vector from hiring any person who (i) initiates discussions with Vector regarding such employment without any direct or indirect solicitation by Vector, (ii) has ceased to be employed by Captaris prior to commencement of direct or indirect employment discussions between Vector and such person, or (iii) responds to any general solicitation placed by Vector or any recruitment agency on Vector’s behalf.
Vector agrees that, for a period (the “Standstill Period”) ending on the earliest of (i) six months from the date of this agreement and (ii) the occurrence of a “Significant Event” (as defined below), unless it shall have been specifically invited in writing by Captaris, neither Vector nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will in any manner, directly or indirectly, (a) effect or publicly seek, offer or propose to effect, or cause or participate in or in any way assist any other person to effect or publicly seek, offer or propose to effect or participate in, (i) any acquisition of 5% or more of the securities (or beneficial ownership thereof) or consolidated assets (including securities of subsidiaries) of Captaris; (ii) any tender or exchange offer, merger or other business combination involving Captaris or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Captaris or any of its subsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Captaris; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) the purpose of which is to effect a transaction described in (a) above; (c) otherwise act, alone or in concert with others, to publicly seek to control or influence the management, Board of Directors or policies of Captaris; or (d) take any action which would reasonably be expected to force Captaris to make a public announcement regarding any of’ the types of matters set forth in (a) above; provided, however, that, notwithstanding the foregoing, actions otherwise prohibited by clause (a)(iv) above shall be permitted hereunder on the date thirty days prior to the last day on which shareholders may properly nominate directors for election at, and properly bring (but, for the avoidance of doubt, not by means of Rule 14a-8 under the Exchange Act) other business to be transacted at, Captaris’s 2008 annual meeting of shareholders if such date occurs earlier than the expiration of the Standstill Period as a result of (x) the date of such meeting being advanced to be more than 30 days prior to the anniversary of Captaris’s 2007 annual meeting of shareholders and/or (y) an amendment to Captaris’s Amended and Restated Bylaws. For purposes of this agreement, (i) ”Significant Event” shall mean (A) the entry by Captaris into an agreement providing for, or the board of directors of Captaris otherwise recommending to the stockholders of Captaris, any merger, sale, stock issuance or other business combination transaction pursuant to which the outstanding shares of Captaris common stock would be converted into cash or securities of another person or 13D Group, or 20% or more of the then outstanding shares of Captaris common stock would be owned by persons other than the then current holders of shares of Captaris common stock, or which would result in all or a substantial portion of Captaris’s assets being sold to any person or 13D Group, or the outstanding shares of Captaris common stock immediately prior to any such transaction would constitute less than 80% of the outstanding shares of Captaris common stock immediately after such transaction, or (B) an unsolicited bona fide tender offer or exchange offer is made by any person or 13D Group to acquire securities of Captaris which would (when added to shares already owned by such person or 13D Group) represent 20% or more of the then outstanding shares of Captaris common stock; (ii) ”Voting Securities” shall mean shares of any class of Captaris capital stock which are then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of Captaris common stock shall be deemed to have been so converted, exchanged or exercised; and (iii) ”13D Group” shall mean, with respect to Captaris Voting Securities, any group of persons formed for the purpose of acquiring, holding, voting or disposing of Captaris Voting Securities, which would require under Section 13(d) of the Exchange Act and the rules and regulations thereunder, the filing of a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act, if such group beneficially owned Captaris Voting Securities representing more than 5% of the total combined voting power of all Captaris Voting Securities then outstanding.
The parties understand and agree that no contract or agreement providing for any transaction between them shall be deemed to exist unless and until a final 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 any transaction involving the other party unless and until both parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive agreement regarding a transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals with regard to a transaction between the parties, and to terminate discussions and negotiations at any time. Vector further understands that (i) Captaris and its Representatives shall be free to conduct any process for any transaction involving Captaris, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement without prior notice to Vector or any other person), (ii) any procedures relating to such process or transaction may be changed at any time without notice to Vector or any other person, and (iii) Vector shall not have any claims whatsoever against Captaris, its Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving Captaris (other than those as against the parties to a definitive agreement with Vector in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Vector, against any third party with whom a transaction is entered into.
It is understood and agreed that 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by either party or any of its Representatives and that the parties shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or in equity. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this letter agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by such non-breaching party in connection with such litigation, including any appeal therefrom. This letter agreement is for the benefit of the parties and their respective directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in accordance with the laws of the State of New York.
This letter agreement will terminate on the second anniversary of the date of this agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between Vector and Captaris.
Very truly yours,
Captaris, Inc.
By: /s/ David P. Anastasi
Its: President & CEO
Accepted and agreed as of the date first written above:
Vector Capital Corporation
By: /s/ Amish Mehta
Its: Partner
| Entailment |
589_nda-11 | 589_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Not mentioned |
589_nda-16 | 589_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
589_nda-15 | 589_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Not mentioned |
589_nda-10 | 589_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
589_nda-2 | 589_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Not mentioned |
589_nda-1 | 589_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Not mentioned |
589_nda-19 | 589_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Contradiction |
589_nda-12 | 589_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
589_nda-20 | 589_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
589_nda-3 | 589_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
589_nda-18 | 589_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Not mentioned |
589_nda-7 | 589_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
589_nda-17 | 589_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
589_nda-8 | 589_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)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
589_nda-13 | 589_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
589_nda-5 | 589_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit (e)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
589_nda-4 | 589_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)(4)
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc. (“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the Transaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or after the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors, financing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses, compilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their interest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes available to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from disclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the receiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by the receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without reference to or use of the Information.
Accordingly, the Parties hereby agree that:
1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose any Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of this Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms of this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of this letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.
2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any national stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek a protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the Information which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in that case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly destroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in writing or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the contrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy any law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement, including any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.
4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking place, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.
Notwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in the preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection with such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by a regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment on, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.
5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any Transaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever with respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written or oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in the case of this Agreement, for the matters specifically agreed to herein.
6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief, including injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement but may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party successfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all reasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.
7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that disclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.
8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically invited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone or in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action which might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public announcement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a third party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the then outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to the board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.
9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal 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.
The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in connection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise thereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver hereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a waiver of any subsequent instance or circumstance of the same or similar nature.
11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if any, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if any, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof, in whole or in part, shall be binding, except by a written agreement signed by the Parties.
12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be binding upon the Parties and their respective Representatives, successors and permitted assigns.
13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising by, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of or relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.
14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to the contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.
Manpower Inc., Comsys IT Partners, Inc.,
a Wisconsin corporation a Delaware corporation
By: /s/ Michael J. Lynch By: /s/ David L. Kerr
Name: Michael J. Lynch Name: David L. Kerr
Vice President, General Counsel International Senior Vice President
Title Title
November 19, 2009 11/19/09
Date Date
| Entailment |
592_nda-11 | 592_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-16 | 592_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-15 | 592_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-10 | 592_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-2 | 592_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Not mentioned |
592_nda-1 | 592_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Contradiction |
592_nda-19 | 592_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-12 | 592_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-20 | 592_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Contradiction |
592_nda-3 | 592_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-18 | 592_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Not mentioned |
592_nda-7 | 592_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-17 | 592_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Not mentioned |
592_nda-8 | 592_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 (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-13 | 592_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-5 | 592_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |
592_nda-4 | 592_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit (d)(3)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective Date”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway, Bothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925 Crossroads Circle, Waukesha WI 53186.
1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and the party receiving Confidential Information is referred to herein as the “Recipient”.
2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure or is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’ discussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to Recipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown by Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s Confidential Information, as shown by documents and other competent evidence in Recipient’s possession.
3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal process, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and agents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder. Certain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and Exchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material nonpublic information about the Owner from purchasing or selling securities of the Owner 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 in reliance on such information, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information until such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by Owner pursuant to the Securities Exchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner gives its prior written consent.
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to Confidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to any disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner and shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.
9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of Confidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written notice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever occurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of the other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement by the other party.
12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory of the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to the recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or address by giving the other party notice of the change in accordance with this Section.
13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.
CARDIAC SCIENCE CORPORATION
Signature: /s/ Mark Daniel
Name: Mark Daniel
Title: Controller
Fax Number: 425-402-2012
Date: 7/27/10
For: CSI/Opto Circuits
Signature: /s/ Joseph LaPorta
Name: Joseph LaPorta
COO
Title: 262-798-5237
[email protected]
Fax Number:
6/25/10
E-mail Address:
Date:
| Entailment |