EXHIBIT 2

   

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EXECUTION 

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JOINT DEFENSE, COMMON INTEREST AND 

CONFIDENTIALITY AGREEMENT 

This JOINT DEFENSE, COMMON INTEREST AND CONFIDENTIALITY 

AGREEMENT (this “Agreement”) is hereby entered into by and among Ottomotto LLC 

(“Ottomotto”), Otto Trucking LLC (“Otto Trucking”), Anthony Levandowski 

(“Levandowski”), Lior Ron (“Ron”) and Uber Technologies, Inc. (“Uber”), and their 

respective attorneys (hereinafter referred to individually as a “Party” and collectively as the 

“Parties”), in contemplation of potential investigations, litigation, and/or other proceedings 

relating to the proposed transactions between Ottomotto, Otto Trucking and Uber and/or any 

affiliates of Uber (hereinafter termed as the “Transaction”). 

WHEREAS, the Parties and their respective legal counsel have recognized and have 

discussed that certain third parties may be notified of the Transaction and such parties may 

conduct investigations and proceedings (collectively, “Potential Proceedings”) that may 

require submission of additional information. The purpose of this Agreement is to confirm 

terms and conditions for the Parties’ common interest in opposing, and, if necessary, 

engaging in a joint defense against Potential Proceedings; and 

WHEREAS, the Parties have undertaken and may undertake factual, legal and 

economic research, investigation and analysis (including any such analysis performed by 

third parties), and the Parties are of the opinion that it is in the best interests of the Parties to 

exchange certain information, pool individual work product, and cooperate in connection 

with any filings, submissions, or Potential Proceedings; and 

WHEREAS, cooperation in such a joint defense and/or common interest effort 

necessarily involves the exchange of confidential business, financial, technical and other 

information, as well as information that is otherwise a privileged attorney/client 

communication and/or attorney work product; and 

WHEREAS, the Parties have confidential and proprietary documents containing 

financial, operating and planning data, which they have shared with each other and may wish 

to disclose to retained lawyers, economists and/or consultants for the Parties; and 

WHEREAS, the Parties recognize that they share a common interest in resolving any 

issues concerning the Transaction under all applicable laws and that a joint defense effort 

will promote evaluation and preparation of their respective defenses; and 

WHEREAS, the Parties by their joint defense and common interest efforts (i) do not 

intend to diminish in any way the confidentiality of any materials exchanged between the Parties 

and (ii) intend to rely on the joint defense and common interest exceptions to the waiver of the 

attorney/client and attorney work product privileges; and 

WHEREAS the Parties wish to pursue their common interests and to avoid any 

suggestion of waiver of the confidentiality or immunity of communications and documents 

protected by the attorney-client privilege, the attorney work product doctrine, or any other 

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applicable privileges or immunities under applicable statutes, rules, regulations and common 

law. 

NOW, THEREFORE, in consideration of the mutual terms and covenants herein, the 

Parties memorialize their pre-existing understanding and oral agreement and further agree as 

follows: 

1. All non-public information, documents, data, opinions, strategies or other 

materials in any form, including oral, written or electronic communications, exchanged or 

communicated in the past or future by whatever means between or among the Parties in 

connection with the joint defense efforts pursuant to and in connection with any Potential 

Proceedings, the defense of the Transaction and any actions related to or arising out of the 

Transaction (hereinafter referred to collectively as “Joint Defense Information”), shall be 

deemed subject to the terms of this Agreement. Wherever possible, the party providing the 

Joint Defense Information (the “Producing Party”) shall label the materials “Joint Defense 

Information - Privileged and Confidential,” although materials may be Joint Defense 

Information subject to the terms of this Agreement even if not labeled. 

2. Each Party affirms that Joint Defense Information includes information that has 

been communicated to counsel in confidence, by one or both of the Parties, for the purpose of 

securing legal advice and representation and attorney-work product and that all such Joint 

Defense Information is therefore subject to the attorney/client and/or work product privilege 

belonging to the client or an attorney, which privilege may not be waived by any Party 

without the prior written consent of the client or attorney entitled to assert such privilege. 

Any disclosure, whether inadvertent or purposeful, by any Party of information exchanged 

pursuant to this Agreement shall not constitute a waiver of any privilege or protection of any 

other Party. No Party has or will have authority to waive any applicable privilege or doctrine 

on behalf of another Party. 

3. The Parties hereby agree that to the extent that Joint Defense Information is 

disclosed to them (the “Receiving Party”), it will be kept confidential and disclosed by the 

Receiving Party only to the following persons who will maintain its confidentiality: (i) the 

signatories to this Agreement and the partners, associates, staff and other employees of their 

respective law firms who are working on the joint defense effort and/or any Potential 

Proceeding in connection with the Transaction; (ii) experts retained by any Party to assist in 

the joint defense effort and any related Potential Proceeding in connection with the 

Transaction; (iii) any outside copying service or other outside vendor retained by any Party 

that is necessary to assist in the joint defense effort and any related Potential Proceeding in 

connection with the Transaction, so long as such outside copying service or other outside 

vendor is subject to a written obligation to not use or disclose Joint Defense Information other 

than for the purpose of assisting the Parties in a Potential Proceeding in connection with the 

Transaction; (iv) except as provided in Paragraph 4, each other Party; and (v) subject to 

Paragraph 7, as required by law. It is expressly understood that, except as expressly 

provided for herein, Joint Defense Information shall not be further disclosed to any other 

person, unless authorized in writing by the Producing Party. 

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4. Nothing in this Agreement shall preclude any Producing Party from designating 

material “Outside-Counsel Only” or “Attorneys Eyes Only.” The term “Outside Counsel” shall 

refer to any law firm that is or may become a signatory to this Agreement. Joint Defense 

Information provided on an “Outside-Counsel Only” basis may be exchanged among outside 

counsel, attorneys within the outside counsel’s law firm, and employees or agents of such firm, 

and may be provided to any experts or vendors (and including any employees or agents of their 

firms) retained in connection with the Transaction, but shall not be divulged to any other 

person. All Joint Defense Information that a Producing Party intends to be provided on an 

“Outside-Counsel Only” basis shall be clearly marked or otherwise designated “OutsideCounsel Only.” The term “Attorneys Eyes Only” shall include (i) Outside Counsel, including 

employees or agents of such firm; (ii) in-house lawyers for the Parties; and (iii) any experts and 

vendors (and including any employees or agents of their firms) retained in connection with the 

Transaction so long as such experts and vendors are subject to a written obligation to not use or 

disclose Joint Defense Information other than for the purpose of assisting the Parties in a 

Potential Proceeding in connection with the Transaction. 

5. Except as otherwise provided for herein, Joint Defense Information will be used 

by the Receiving Party only for purposes of the joint defense effort and any Potential 

Proceeding in connection with the Transaction, as identified above, and shall not be used for any 

other purpose without the prior written consent of the Producing Party. Notwithstanding the 

foregoing, in any proceeding between the Parties, the fact that a Party provided the other Party 

with information or a document as Joint Defense Information under this Agreement will not (i) 

preclude or limit in any way the Producing Party’s ability to reference or use such information 

or documents; or (ii) affect the discoverability or use of such information or documents by the 

Receiving Party, provided that (a) such information or documents would otherwise have been 

subsequently discoverable or obtainable from the Producing Party without asserting that there 

has been a waiver of attorney client privilege or attorney work product protection for such 

documents or information as a result of being provided to the Receiving Party as Joint Defense 

Information; or (b) is otherwise obtained by the Receiving Party from other sources outside of 

this Agreement without violating this Agreement. 

6. Joint Defense Information shall not include documents and information that: (a) 

were generally publicly available prior to the date hereof; (b) become publicly available 

subsequent to the date hereof other than through an unlawful act or breach of the Receiving 

Party under this Agreement; (c) are in the possession of a Party that were lawfully obtained 

from a source other than the Producing Party; and (d) are obtained from a third party or were 

received or developed outside of this joint defense effort subsequent to the date hereof 

without violating this Agreement. Joint Defense Information includes, however, 

communications between or among the Parties forwarding, discussing, or relating to the 

information in categories (a)-(d) of this paragraph. 

7. If any person or entity requests or demands from a Receiving Party access to 

Joint Defense Information that the Receiving Party obtained from a Producing Party by 

subpoena, court order, arbitral order or otherwise, the Party receiving the demand, subpoena or 

order shall notify the Producing Party in writing within forty-eight (48) hours. Each Party 

agrees that, except as required by law, the Producing Party shall have the opportunity promptly, 

and in any event no more than ten (10) days after receiving notice of the subpoena or order, to 

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assert any rights or privileges against the request to obtain the material, and that the Producing 

Party and the Party who received the request shall take all steps necessary and appropriate to 

assist in the assertion of applicable rights and privileges with regard to said Joint Defense 

Information in the appropriate forum. The Producing Party shall bear the legal costs, including 

attorneys’ fees, in asserting such rights and privileges, subject to Uber’s obligation to provide 

indemnification to Ottomoto, Otto Trucking, Levandowski and Ron pursuant to any written 

agreement among the Parties. If the return date on the subpoena or order is less than ten (10) 

days, the Party receiving the subpoena or order shall take all reasonable steps to secure an 

extension of time for the Producing Party to have a reasonable opportunity to assert any 

applicable rights or privileges prior to the return date. 

8. The existence of this Agreement or of a joint defense or common interest effort 

in connection with the Transaction shall not be used in any fashion against any of the Parties 

to this Agreement, except that nothing herein shall prohibit the use of the foregoing to enforce 

the obligations, rights, and remedies of the Parties under this Agreement. No Party to this 

Agreement will claim (i) that any counsel is disqualified in such litigation or any other matter 

by reason of the joint defense or common interest effort or such counsel’s access to 

confidential, privileged, or work product documents or (ii) that this Agreement creates any 

attorney-client relationship that did not exist prior to the earlier of any prior understanding of 

the Parties regarding their common interests with respect to the Transaction, or the execution 

of this Agreement. 

9. At any time, any Producing Party may request of any Receiving Party in writing 

that it return to the Producing Party or destroy any Joint Defense Information provided to the 

Receiving Party pursuant to this Agreement and the Receiving Party will promptly comply with 

such request except as prohibited by law, legal duty or legal obligation. Upon request of the 

Producing Party, a Receiving Party will redact (i.e., permanently delete) from any retained work 

product all statements and disclosures of Joint Defense Information provided by the Producing 

Party; provided, however, that each Party’s Outside Counsel may retain an original (i.e., nonredacted) copy of any such work product on the condition that it will not provide the original 

work product to its client without making any necessary redactions unless it has obtained the 

prior written consent of the Producing Party. The Parties agree that a failure to return, destroy, 

or redact such materials upon request provides adequate grounds for the Producing Party to seek 

a court order directing return, destruction, or redaction of the materials. If a Receiving Party is 

unable to ensure the destruction or redaction of any Joint Defense Information, it will take 

reasonable measures to make such Joint Defense Information permanently inaccessible to 

employees of the Receiving Party. Any such destruction or redaction shall, upon the written 

request of the Producing Party, be certified in writing to the Producing Party by an authorized 

person supervising the same. Even after the conclusion of the joint defense effort, Joint Defense 

Information will be treated as confidential. The Parties acknowledge that they and others 

permitted access to Joint Defense Information pursuant to this Agreement may maintain 

archived or back-up tapes and other media not accessed in the ordinary course of business but 

used only to restore inadvertently destroyed or otherwise lost data (“Back-up Systems”) that 

may include such Joint Defense Information. Notwithstanding the foregoing, the Parties 

acknowledge that it would be burdensome to remove information from such Back-up Systems 

or to render the information permanently inaccessible. The Parties shall not be required to 

engage in such steps but agree that they shall take no steps to retrieve such information from 

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Back-up Systems in the absence of any need to use those Back-up Systems more generally to 

restore destroyed or lost data. Such Back-up Systems will be erased or destroyed in accordance 

with the Parties’ normal course document preservation and destruction policies. Further, in the 

event such Back-up Systems are used to restore data destroyed or lost for other reasons, any 

Joint Defense Information will be removed from such restored systems and destroyed or 

rendered permanently inaccessible. 

10. Nothing in this Agreement shall obligate any Party to provide any information 

to any other Party or exchange any information with any other Party. The Parties each recognize 

their respective rights to separately confer, and to elect not to share such communications with 

the other Party. 

11. Nothing in this Agreement shall restrict any Party from using or disclosing in 

any manner it chooses materials, whether confidential or otherwise, originating with that Party so 

long as such materials do not contain or disclose Joint Defense Information that was received 

from another Party. 

12. Any Party may withdraw from the Agreement upon written notification 

(electronic or otherwise) to the other Parties. All Parties agree that in the event any Party 

withdraws, such Party will promptly return or destroy (pursuant to Paragraph 9) all Joint 

Defense Information provided by any of the other Parties and any such destruction shall, upon 

the request of the Producing Party, be certified in writing to the Producing Party by an 

authorized person supervising the same. The Parties agree that a failure to return or destroy such 

materials provides adequate grounds for the Producing Party to seek a court order directing 

return or destruction of the materials. Notwithstanding any withdrawal, each Party remains 

subject to the provisions of Paragraphs 2-9 and 13-14 of this Agreement. 

13. Each Party acknowledges and agrees that money damages would not be a 

sufficient remedy for any breach of any provision of this Agreement by any Party, and that in 

addition to such remedies which any non-breaching Party may have, such non-breaching Party 

shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy 

for such breach. 

14. Each Party agrees to assume liability for any breach of this Agreement by it or 

any third-party it retains in conjunction with its representation related to the Transaction. Each 

Party hereby agrees that it assumes liability for any breach of this Agreement. 

15. Any modifications to this Agreement must be in writing and signed by all Parties. 

16. Any and all disputes concerning the validity, construction, interpretation, and 

effect of this Agreement shall be resolved under the laws of the State of Delaware applicable to 

agreements made and to be performed entirely with the State of Delaware, without regard to the 

conflict of law provisions thereof that would result in the application of the law of any other 

jurisdiction. Each party hereby irrevocably and unconditionally consents to submit to the 

exclusive jurisdiction of the Delaware Court of Chancery in and for New Castle County, or in the 

event (but only in the event) that such Delaware Court of Chancery does not have subject matter 

jurisdiction over such matter, the United States District Court for the District of Delaware (as 

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applicable, the “Chosen Court”), for any actions, suits or proceedings arising out of or relating to 

this Agreement and the transactions contemplated hereby (and each party agrees not to 

commence any action, suit or proceeding relating thereto except in such courts, and further 

agrees that service of any process, summons, notice or document by registered mail to such 

party’s address in the notice provision of the Transaction Agreement shall be effective service of 

process for any action, suit or proceeding brought against it in any such court). Each Party 

hereby irrevocably and unconditionally waives and agrees not to plead or claim in any such court 

that any such action, suit or proceeding brought in any such court has been brought in an 

inconvenient forum. 

17. The Parties (or any successor entity to such Parties), together with any other 

signatories thereto, executed a Mutual Non-Disclosure Agreement, dated as of February 1, 2016 

(as amended, the “NDA”). This Agreement is intended to supplement, not replace, the NDA and 

this Agreement should be read consistently with the NDA. To the extent there is any conflict 

between this Agreement and the NDA, this Agreement shall control. 

18. This Agreement may be executed in counterparts, each of which shall be deemed 

an original, but all of which together shall constitute one and the same instrument. 

[signatures only to follow] 

 

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April 11, 2016

April 11, 2016

April 11, 2016

April 11, 2016

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Ottomotto LLC: 

By: 

Date: 

Otto Trucking LLC: 

By: 

Date: 

JOINT DEFENSE PRIVILEGED 

Uber Technologies, Inc.: 

By: 

Date: 

Counsel for Ottomotto LLC/Otto Trucking LLC: Counsel for Uber Technologies, Inc. 

By: 

Eric Amdursky 

O'Melveny & Myers LLP 

_By:_ 

Eric Tate 

Morrison & Foerster LLP 

Date: Date: 

Anthony Levandowski: 

By: 

Date: 

Counsel for Levandowski: 

By: 

John F. Gardner 

Donahue Fitzgerald LLP 

Date: 

Lior Ron: 

By: 

Date: 

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April 11, 2016

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JOINT DEFENSE PRIVILEGED

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Counsel for Ron:

By: ___________________________________

Alisa J. Baker

Levine & Baker LLP

Date: _________________________________ April 11, 2016

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