CONFIDENTIAL
MUTUAL NON-DISCLOSURE AGREEMENT
This MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement") is entered into as of September 11, 2013 by and between Sony Pictures Television Inc., having a place of business at 10202 West Washington Boulevard, Culver City, California 90232 ("Sony Pictures"), and Tribune Company, having its principal place of business at 435 North Michigan Avenue, Chicago, Illinois 60611 ("Company").
WHEREAS, Sony Pictures and Company wish to have discussions regarding potential business opportunities, including the possibility of Sony Pictures producing programming for Company affiliated stations and acquiring equity in Company (the "Potential Transaction"); and accordingly wish to disclose to and receive from each other, from time to time during the term of this Agreement, certain confidential and proprietary information regarding their respective businesses;
NOW, THEREFORE, in consideration of such disclosures and the agreements and covenants herein contained, each of Sony Pictures and Company agrees as follows:
1. Definition of Confidential Information. “Confidential Information” shall mean all information disclosed, directly or indirectly, through any means of communication or observation, by or on behalf of one party hereto (the "Disclosing Party") to the other party hereto (the "Receiving Party") on or after the date hereof, that relates to or is derived from the Disclosing Party’s business, strategic, marketing, technological or creative affairs, or to any other matter that the Receiving Party is advised or has reason to know is the confidential or proprietary information of the Disclosing Party. Any material provided by either party to the other which is clearly designated "Confidential" (or other similar legend) will be presumed to be Confidential Information; the absence of any such legend, however, will not preclude the same from being deemed Confidential Information.
2. Exceptions to Confidential Information. Notwithstanding any other provision of this Agreement, "Confidential Information" does not include information which:
(a) is or becomes generally known or available to the public through no act or failure to act by the Receiving Party or its Representatives (as defined below) in breach of this Agreement;
(b) is or becomes known to the Receiving Party from a third party who, to the knowledge of the Receiving Party after reasonable investigation, owes no legal or contractual obligation of confidentiality to the Disclosing Party; or
(c) is or was developed independently by or for the Receiving Party, without use of or reference to any Confidential Information of the Disclosing Party and without violation of any obligation contained herein.
3. Protection of Confidential Information. Each party, as a Receiving Party, agrees that it will:
(a) not use, or authorize the use of, such Confidential Information for any purpose other than for the evaluation, negotiation and, if applicable, consummation of the Potential Transaction;
(b) other than as permitted by Section 4 of this Agreement, hold such Confidential Information in strict confidence and protect such Confidential Information with the same degree of care (but in no event less than a reasonable degree of care) such party normally uses to protect its own information that is similar in type or nature to the Confidential Information;
(c) not disclose such Confidential Information to any person other than to those of its and/or its affiliated companies’ respective employees, stockholders, partners, members, directors, officers, advisors, agents, accountants, attorneys, representatives and/or consultants (collectively, “Representatives”), in each case, who (i) need to know such Confidential Information to facilitate the evaluation, negotiation and, if applicable, consummation of the Potential Transaction, and (ii) are advised of the confidential and proprietary nature of such Confidential Information and are bound by confidentiality obligations (which may be contained in such Representatives’ engagement agreements) that limit the further use and disclosure of such Confidential Information;
(d) not copy or reproduce all or any part of such Confidential Information in any medium, except as may be strictly necessary to facilitate the use of Confidential Information as permitted by this Agreement; and
(e) not decompile, disassemble or reverse engineer all or any part of such Confidential Information.
For the avoidance of doubt, any use of the Disclosing Party’s Confidential Information by any Representative of the Receiving Party must be in strict accordance with the terms of this Agreement. Without limiting any obligations of the Receiving Party under this Agreement, the Receiving Party shall be responsible for any breaches of this Agreement by its Representatives.
4. Disclosure Compelled by Law or Judicial Proceeding. In the event that the Receiving Party is required to disclose any portion of any Confidential Information of the Disclosing Party (i) by operation of law or in connection with a judicial or governmental proceeding or arbitration (whether by oral questions, interrogatories, requests for information, subpoena, civil investigative demand or similar process), (ii) pursuant to the rules or regulations of the United States Securities and Exchange Commission (or any other applicable securities regulatory body) or (iii) pursuant to the rules or regulations of any securities exchange on which the Receiving Party’s or its parent company’s securities are listed or similar self-regulatory body, then such disclosure will be permissible only if and after the Receiving Party promptly notifies the Disclosing Party of such requirement (to the extent legally permitted) so that the Disclosing Party (at its sole cost and expense) may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In no event will the Receiving Party or any of its Representatives oppose any action by the Disclosing Party to obtain an appropriate protective order or assurance of confidential treatment to preserve the confidentiality of any such Confidential Information. If as a result of any such requirement the Receiving Party is required to disclose Confidential Information or the existence, content or status of negotiations relating to the specific transactions contemplated by the Potential Transaction, the Receiving Party may furnish, without liability hereunder, that portion (and only that portion) of the Confidential Information which it is required to disclose.
5. Ownership of Confidential Information. All rights in, and title to, the Confidential Information supplied by a Disclosing Party remain in such Disclosing Party. Neither this Agreement nor the disclosure of any Confidential Information will be construed as granting to the Receiving Party (either expressly, by implication or estoppel, or otherwise) any license or immunity under any copyright, patent, trade secret, trademark, or other intellectual property right now or hereafter owned or controlled by the Disclosing Party, or any right to use, exploit or further develop the same, except solely to effectuate the evaluation of the Potential Transaction.
6. No Further Obligations; No Violation; Export Controls. This Agreement is not intended and shall not be construed to create, any obligation to enter into any other agreement with respect to the Confidential Information or the Potential Transaction. Neither party shall be under any obligation hereunder to continue any discussions or negotiations regarding the Potential Transaction and either party may terminate such discussions or negotiations at any time without liability hereunder. Moreover, unless and until a definitive written agreement is entered into, neither party nor any of either party's Representatives shall be under any legal obligation of any kind whatsoever with respect to such a transaction except for the matters specifically set forth in this Agreement. Additionally, this Agreement does not constitute or create any obligation of either party to provide any Confidential Information or other information to the other party, rather it merely defines the duties and obligations of each party and its Representatives with respect to the Confidential Information to the extent Confidential Information may be disclosed or made available. Under no circumstances is either party obligated to disclose or make available any information to the other party, including any Confidential Information, which in its sole and absolute discretion it determines not to disclose. Each party acknowledges and understands that the other party does not need or desire to receive any Confidential Information that is government classified information, or is otherwise restricted information, the receipt, disclosure, use or retention of which is made a crime by any provision of applicable statute or the rules and regulations thereunder. The parties accordingly agree that such information will not be provided, either orally, in writing or otherwise. Neither party will transmit nor export, directly or indirectly, any technical data received from the other party, or any product utilizing any such data, in violation of applicable data export laws and regulations.
7. Competitive Activities. Each party understands that either party may have, or in the future may enter into, relationships with third parties having pre-existing relationships with the other party. Provided that each party complies with its obligations contained herein, and except as otherwise expressly provided herein, this Agreement shall not in any way limit, restrict or preclude either party from pursuing any of its present or future business activities or interests or from entering into any agreement or transaction with any person, regardless of whether such business activities or interests are competitive with the business activities and interests of the other party and regardless of whether the subject matter of any such agreement or transaction is in any way similar to or different from the transactions considered and evaluated by the parties.
8. Concurrent/Future Development. Each Disclosing Party understands and agrees that (x) the Receiving Party and its affiliates and their respective Representatives is currently or may become engaged in lines of business the same as or similar to those of the Disclosing Party and that, wholly independent of the information provided hereunder, the Receiving Party and its affiliates and their respective Representatives may currently or in the future be developing internally, or receiving from third parties, information that coincidentally may be similar to portions of the information provided hereunder and/or otherwise competitive with the Disclosing Party's actual or future projects or business, and (y) wholly independent development by the Receiving Party and its affiliates and their respective Representatives of media content, products, programs, services, goods, concepts, opportunities, documents or information that are coincidentally similar to (but not, in whole or part, based upon) any information provided hereunder will not be deemed to violate this Agreement. For the avoidance of doubt, nothing in this Section 8 is intended to relieve either party from any of its obligations of confidentiality contained in this Agreement.
9. Material, Non-public Information. Each party is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws may prohibit any person who has received from an issuer any material, non-public information from purchasing or selling securities of such issuer 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.
10. No Warranties. EACH RECEIVING PARTY ACKNOWLEDGES AND AGREES THAT THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER RELATING TO THE CONFIDENTIAL INFORMATION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" AND THE DISCLOSING PARTY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT.
11. Term / Termination. This Agreement shall commence as of the date first written above and will continue in full force and effect for a period of two (2) years from the date hereof.
12. Return/Destruction of Documents. In the event that negotiations between the parties are terminated for any reason, and/or upon the Disclosing Party’s written request, each Receiving Party will forthwith either, at the Receiving Party’s option, return to the Disclosing Party or destroy or erase all Confidential Information furnished by the Disclosing Party as well as all documents, memoranda, analyses, compilations, studies, notes and other writings whatsoever prepared by the Receiving Party or its Representatives based in whole or in part on the Disclosing Party’s Confidential Information. Such return, erasure or destruction shall be certified in writing to the other party by an authorized officer. Notwithstanding the foregoing, (i) the parties and their Representatives may each retain Confidential Information to the extent required pursuant to legal or regulatory requirements (including internal compliance procedures instituted to satisfy regulatory obligations), and (ii) because electronic systems may retain information for archival purposes or pursuant to automated computer backup procedures, neither party nor its Representatives shall be required to erase electronically stored Confidential Information that has been saved to a back-up file in accordance with such party or its Representatives’ ordinary electronic back-up practices; provided, that any such information so retained shall be held in compliance with the terms of this Agreement.
13. Notices. Notices required to be given by one party to the other in connection with this Agreement will be given in writing and delivered via personal delivery, recognized air courier service (e.g., Federal Express, DHL) or by facsimile with a copy sent by first class, postage paid, return receipt mail to the other party’s address set forth in the introductory paragraph of this Agreement (in the case of notices to Sony Pictures to the attention of: Corporate Legal Department (facsimile number: 310-244-2169), with a copy also to the attention of: Sony Pictures Entertainment Inc., 10202 West Washington Boulevard, Culver City, California 90232, Attention: General Counsel (fax number: 310-244-0510) and in the case of notices to the Company to the attention of: Eddie Lazarus, General Counsel (facsimile number: 312-222-4206), or such other address as a party may substitute by giving notice to the other in accordance with this Section.
14. Communications. Except with the prior permission of the other party, all communications regarding the Potential Transaction and requests for information shall be directed to Eddie Lazarus, in the case of requests regarding the Company, and Chris Mansolillo, in the case of requests regarding Sony Pictures. Each party agrees not to contact any stockholder, director, officer, employee or agent of the other party, or any customer, supplier or other person having a business relationship with the other party, regarding the Potential Transaction, except with the prior permission of the other party.
15. Assignment. This Agreement and all rights, duties and obligations hereunder are personal to the undersigned parties and may not be assigned, delegated or otherwise transferred by either party, or by operation of law, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Any other attempt by either party to assign or transfer this Agreement or any right or obligation herein is void and without effect and will constitute a material breach of this Agreement. This Agreement and each and every provision hereof will be binding upon and will inure to the benefit of the parties and their permitted successors and assigns.
16. Injunctive Relief. The parties acknowledge that the unauthorized use or disclosure of the Disclosing Party's Confidential Information could cause the Disclosing Party irreparable harm and that money damages may be inadequate to compensate the Disclosing Party for such harm. Accordingly, in addition to any other available remedies, the Disclosing Party will, subject to the provisions of Section 19, be entitled to seek equitable relief, including injunctive relief and/or specific performance.
17. Publicity Restrictions. Without the other party’s prior written approval, neither party will (a) make or provide any public or private statement or disclosure to any other person (other than its Representatives) concerning the existence of or any aspect of this Agreement, whether the parties have shared or made available any Confidential Information with each other, or the discussions between the parties, except to the extent such disclosure would be permitted pursuant to Section 4 of this Agreement; or (b) use the name, likeness or trademarks of the other party or its Representatives, employees or affiliates to express or imply any relationship or affiliation between the parties, or any endorsement of any product or service. For purposes hereof, the information specified in this Section 17 shall be deemed Confidential Information of each party hereunder.
18. No Partnership. This Agreement is not intended and shall not be construed to create a joint venture, partnership, agency relationship or other business association between the parties.
19. Applicable Law / Jurisdiction. This Agreement shall be construed and enforced in accordance with the laws of the State of California without regard to the choice of law principles thereof. All actions or proceedings arising in connection with, touching upon or relating to this Agreement, the breach thereof and/or the scope of the provisions of this Section 19 other than actions or proceedings seeking equitable relief (a “Proceeding”) shall be submitted to JAMS ("JAMS") for binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less (as applicable, the “Rules”) to be held solely in Los Angeles County, California, U.S.A., in the English language in accordance with the provisions below.
(a) Each arbitration shall be conducted by an arbitral tribunal (the “Arbitral Board”) consisting of a single arbitrator who shall be mutually agreed upon by the parties. If the parties are unable to agree on an arbitrator, the arbitrator shall be appointed by JAMS. The arbitrator shall be a retired judge with at least ten (10) years experience in commercial matters. The parties shall be entitled to conduct discovery in accordance with Section 1283.05 of the California Code of Civil Procedure, provided that (a) the Arbitral Board must authorize all such discovery in advance based on findings that the material sought is relevant to the issues in dispute and that the nature and scope of such discovery is reasonable under the circumstances, and (b) discovery shall be limited to depositions and production of documents unless the Arbitral Board finds that another method of discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the information sought.
(b) There shall be a record of the proceedings at the arbitration hearing and the Arbitral Board shall issue a Statement of Decision setting forth the factual and legal basis for the Arbitral Board's decision. If neither party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the Arbitral Board's decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles County Superior Court or, in the case of Company, such other court having jurisdiction over Company, which may be made ex parte, for confirmation and enforcement of the award. If either party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the award of the Arbitral Board shall be appealed to three (3) neutral arbitrators (the "Appellate Arbitrators"), each of whom shall have the same qualifications and be selected through the same procedure as the Arbitral Board. The appealing party shall file its appellate brief within thirty (30) days after its written notice requesting the appeal and the other party shall file its brief within thirty (30) days thereafter. The Appellate Arbitrators shall thereupon review the decision of the Arbitral Board applying the same standards of review and all of the same presumptions) as if the Appellate Arbitrators were a California Court of Appeal reviewing a judgment of the Los Angeles County Superior Court, except that the Appellate Arbitrators shall in all cases issue a final award and shall not remand the matter to the Arbitral Board. The decision of the Appellate Arbitrators shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles County Superior Court or, in the case of Company, such other court having jurisdiction over Company, which may be made ex parte, for confirmation and enforcement of the award. The party appealing the decision of the Arbitral Board shall pay all costs and expenses of the appeal, including the fees of the Appellate Arbitrators and the reasonable outside attorneys' fees of the opposing party, unless the decision of the Arbitral Board is reversed, in which event the costs, fees and expenses of the appeal shall be borne as determined by the Appellate Arbitrators.
(c) Subject to a party's right to appeal pursuant to the above, neither party shall challenge or resist any enforcement action taken by the party in whose favor the Arbitral Board, or if appealed, the Appellate Arbitrators, decided. Each party acknowledges that it is giving up the right to a trial by jury or court. The Arbitral Board shall have the power to enter temporary restraining orders and preliminary and permanent injunctions. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the Arbitral Board’s award; provided, however, that prior to the appointment of the Arbitral Board or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief in a court of competent jurisdiction, without thereby waiving its right to arbitration of the dispute or controversy under this Section. All arbitration proceedings (including proceedings before the Appellate Arbitrators) shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. Notwithstanding anything to the contrary herein, in connection with any claim of breach hereunder, each party hereby irrevocably waives any right or remedy to seek and/or obtain injunctive or other equitable relief or any order with respect to, and/or to enjoin or restrain or otherwise impair in any manner, the production, distribution, exhibition or other exploitation of any motion picture, television or other audio-visual production related to the other party, its parents, subsidiaries and affiliates, or the use, publication or dissemination of any advertising in connection with such production; provided, however, that the foregoing shall not prohibit a party from seeking or obtaining injunctive or other equitable relief or any order based on a claim that such production uses the other party’s Confidential Information to infringe upon such party's intellectual property rights.
20. Other NDAs. The parties and certain of their affiliates are or may become party to other confidentiality agreements from time to time in connection with matters unrelated to the Potential Transaction (“Other Agreements”). Notwithstanding any other provision hereof, including Section 21(c), the parties agree that this Agreement shall apply only with respect to the Potential Transaction, and Confidential Information received and discussions occurring in connection therewith, and shall not apply to any confidential information that may be exchanged or discussions occurring in connection with any Other Agreements.
21. General Provisions.
(a) The parties shall maintain reasonable security measures to safeguard each other’s personally identifiable information from loss, misuse, unauthorized access, disclosure, alteration or destruction.
(b) The parties shall supply personally identifiable information to each other only in accordance with, and to the extent permitted by, applicable laws relating to privacy and data protection in the applicable territories. Personally identifiable information supplied by Company to Sony Pictures will be retained and used in accordance with the Sony Pictures Safe Harbor Privacy Policy, located at http://www.sonypictures.com/corp/eu_safe_harbor.html.
(c) This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations and understandings, whether oral or written, with respect to the subject matter hereof.
(d) This Agreement may not be amended, waived or modified except by a single instrument in writing executed by duly authorized representatives of the parties.
(e) This Agreement will be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party.
(f) For purposes of this Agreement, the term “person” shall be broadly interpreted to include without limitation any corporation, company, group, partnership and natural person.
(g) In the event that any provision of this Agreement is held by a court of competent jurisdiction or arbitrator to be void, voidable, unlawful or for any reason unenforceable, in whole or in part, such provision will be deemed and construed to extend only to the maximum permitted by law so as to effectuate the intent of the parties, and the remainder of this Agreement will continue in full force and effect and enforceable according to its terms.
(h) To the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party hereto understands and agrees that both parties hereto and their Representatives have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of both parties hereto that the sharing of such Confidential Information is not intended to, and shall not, waive or diminish in any way the confidentiality of such Confidential Information or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by either party hereto that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under those privileges, this Agreement, and under the joint defense doctrine.
(i) This Agreement may be executed by manual or facsimile or other electronically transmitted signatures and in any number of counterparts, each of which will be deemed an original and all which together will constitute one and the same instrument.
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