id
stringlengths 8
10
| pid
stringlengths 10
12
| input
stringlengths 1.48k
54.6k
| input_prefix
stringclasses 17
values | output
stringclasses 3
values |
|---|---|---|---|---|
593_nda-11 | 593_nda-11_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Not mentioned |
593_nda-16 | 593_nda-16_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Not mentioned |
593_nda-15 | 593_nda-15_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Agreement shall not grant Receiving Party any right to Confidential Information. | Not mentioned |
593_nda-10 | 593_nda-10_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Entailment |
593_nda-2 | 593_nda-2_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Confidential Information shall only include technical information. | Not mentioned |
593_nda-1 | 593_nda-1_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| All Confidential Information shall be expressly identified by the Disclosing Party. | Contradiction |
593_nda-19 | 593_nda-19_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Some obligations of Agreement may survive termination of Agreement. | Entailment |
593_nda-12 | 593_nda-12_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party may independently develop information similar to Confidential Information. | Entailment |
593_nda-20 | 593_nda-20_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Entailment |
593_nda-3 | 593_nda-3_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Confidential Information may include verbally conveyed information. | Entailment |
593_nda-18 | 593_nda-18_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Entailment |
593_nda-7 | 593_nda-7_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Entailment |
593_nda-17 | 593_nda-17_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Not mentioned |
593_nda-8 | 593_nda-8_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. | Entailment |
593_nda-13 | 593_nda-13_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party may acquire information similar to Confidential Information from a third party. | Entailment |
593_nda-5 | 593_nda-5_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party may share some Confidential Information with some of Receiving Party's employees. | Entailment |
593_nda-4 | 593_nda-4_0 | Exhibit (d)(6)
December 20, 2013
PRIVATE AND CONFIDENTIAL
Mr. Mark Anderson, Managing Director
Mr. Lawrence Fey, Principal
Mr. Stephen Master, Vice President
GTCR LLC
300 N. LaSalle St.
Suite 5600
Chicago, IL 60654
Re: Non-Disclosure Agreement
Gentlemen:
In connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware corporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make certain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As a condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in strict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the other actions as hereinafter expressly set forth.
As used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective directors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed) of the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without limitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.
1. Evaluation Material.
As used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after the date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and irrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your Representatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information that the Company or the Company’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has become generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was within your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not known by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-confidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and should not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without reference to any confidential information disclosed by the Company.
2. Evaluation Material and Confidentiality.
You and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a Transaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and, except as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to know the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a Transaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement. You shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all commercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including in legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you nor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any business or customer of the Company, or otherwise use any such information competitively against the Company.
3. Transaction Information, Discussions and Confidentiality.
Except as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of your Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made available to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that discussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any of the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the Company’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to collectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the prior written consent of Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement, understanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a Transaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt financing source.
4. Legally Compelled Disclosure.
If you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal proceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any Transaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement, request or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s sole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such Representative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the advice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such Representative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative determine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such Representative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so disclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such tribunal or other public or governmental authority.
5. Termination of Discussions at Any Time Return of Evaluation Material.
At any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing compliance with any applicable Non-Disclosure Agreement Page 4
laws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by you or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their confidentiality obligations hereunder.
6. Privileged Information.
The furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any attorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The parties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose, they (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges and protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In furtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent agreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.
7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.
The Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form thereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its Representatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that neither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or resulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions therefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not entitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or warranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties hereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.
8. Standstill.
You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to have called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals);
(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written) with, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any person in connection with any of the foregoing; or
(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company;
provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
For purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of being or required to be settled by the payment of cash or through the delivery of such securities.
9. Effect of Agreement.
No agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a definitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally binding as aforesaid, neither party nor any of their respective affiliates shall be under any obligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations with respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties hereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement), each party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your Representatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its Representatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any time without any obligation to notify the other party hereto of such disclosure or negotiations.
10. Designated Contact Persons.
Each party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All communications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions or questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives acting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s knowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person directed by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any possible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in writing by the Company.
11. Non-Solicitation.
You agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this Agreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person acting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had contact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your Representatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by the Company.
12. Securities Law Compliance.
It is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the Company to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed as to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person is reasonably likely to purchase or sell such securities.
13. Remedies.
The Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this Agreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that therefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for any such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall nonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to you and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive from the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
14. Existing Portfolio Investments.
The Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in securities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is engaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this Agreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot be separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of your obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including, without limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use of such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical purposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by you and your controlled affiliates.
Notwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation Material or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms of this Agreement shall apply to such entities.
15. Other Terms.
(a) Waivers and Amendments. No failure or delay by any party to this Agreement 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. This Agreement may only be amended by the execution and delivery of a written agreement to which you and the Company are signatories.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, without reference to the conflict of law principles of that state.
(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of any process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of Transaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants, undertakings and subject matter set forth in this Agreement.
(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this Agreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of interpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision hereof.
(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the date hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation Material is considered a trade secret under applicable law.
Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus.
Very truly yours,
Vocus, Inc.
By: /s/ Stephen A. Vintz
Name: Stephen A. Vintz
Title: Executive Vice President/Chief Financial Officer
Accepted and agreed as of the date first written above.
GTCR LLC
By: /s/ Joseph Navea
Name: Joseph Navea
Title: Documentation Coordinator
| Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. | Entailment |
594_nda-11 | 594_nda-11_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Not mentioned |
594_nda-16 | 594_nda-16_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Entailment |
594_nda-15 | 594_nda-15_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Agreement shall not grant Receiving Party any right to Confidential Information. | Not mentioned |
594_nda-10 | 594_nda-10_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Entailment |
594_nda-2 | 594_nda-2_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Confidential Information shall only include technical information. | Contradiction |
594_nda-1 | 594_nda-1_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| All Confidential Information shall be expressly identified by the Disclosing Party. | Not mentioned |
594_nda-19 | 594_nda-19_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Some obligations of Agreement may survive termination of Agreement. | Entailment |
594_nda-12 | 594_nda-12_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party may independently develop information similar to Confidential Information. | Entailment |
594_nda-20 | 594_nda-20_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Entailment |
594_nda-3 | 594_nda-3_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Confidential Information may include verbally conveyed information. | Not mentioned |
594_nda-18 | 594_nda-18_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Entailment |
594_nda-7 | 594_nda-7_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Entailment |
594_nda-17 | 594_nda-17_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Entailment |
594_nda-8 | 594_nda-8_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. | Entailment |
594_nda-13 | 594_nda-13_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party may acquire information similar to Confidential Information from a third party. | Entailment |
594_nda-5 | 594_nda-5_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party may share some Confidential Information with some of Receiving Party's employees. | Entailment |
594_nda-4 | 594_nda-4_0 | Exhibit (d)(2)
December 7, 2012
JAB Beech Inc.
2200 Pennsylvania Avenue, NW
Washington, DC 20052
Non-Disclosure Agreement
Ladies and Gentlemen:
In connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation (the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning itself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the stockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source that the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed (collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or otherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on behalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter agreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.
1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been publicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or investments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent containing, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term “Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of this Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller, provided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement with (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such information, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this Agreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.
2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing, evaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that any other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly confidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the provisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material for purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the material terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of financing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any unauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material than are reasonably necessary to perform the Evaluation.
3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees that, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any Evaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect thereto.
4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your securities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party 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 any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall provide the other party with prompt notice of any such request or requirement so that such 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, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first sentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability hereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place, which its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material and the discussions taking place, 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 thereto by any third party to which disclosure is made.
5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any affiliate thereof 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 on such information for so long as the information remains material and non-public and agree to comply with such securities laws.
7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which discussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in any manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way assist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of beneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller);
(2) any tender or exchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Seller; or (4) any-solicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote--any voting securities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with-respect to any securities of the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the types of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in this Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates of up to an aggregate of 1% of such securities).
8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time, (ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole discretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party, and (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not wish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of the Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you or your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that (i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation Material which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that neither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside legal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with any disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your Representatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material). Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.
9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date hereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain employed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation that is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such employment without any direct or indirect solicitation by you.
10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your Representatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. 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.
12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will initiate or cause to be initiated any communication with any director, officer or employee of the Seller concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the Chairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as having knowledge of a Possible Transaction.
13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller, which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to reimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights under this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.
14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither the Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement, except for matters specifically agreed to herein.
16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation the right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the outstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to assign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that you may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of this Agreement shall be null and void ab initio.
17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In any dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and submits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process by first class certified mail, return receipt requested, postage prepaid.
18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in writing by each such party.
20. Counterparts. 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 one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for purpose of this Agreement.
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Seller.
Very truly yours,
Caribou Coffee Company, Inc.
By: /s/ Dan E. Lee
Name: Dan E. Lee
Its: S.V.P, General Counsel & Secretary
Accepted and agreed to as of the date first written above:
JAB Beech Inc.
By: /s/ Joachim Creus
Name: Joachim Creus
Its: President
| Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. | Entailment |
597_nda-11 | 597_nda-11_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Not mentioned |
597_nda-16 | 597_nda-16_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Not mentioned |
597_nda-15 | 597_nda-15_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Agreement shall not grant Receiving Party any right to Confidential Information. | Not mentioned |
597_nda-10 | 597_nda-10_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Not mentioned |
597_nda-2 | 597_nda-2_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Confidential Information shall only include technical information. | Not mentioned |
597_nda-1 | 597_nda-1_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| All Confidential Information shall be expressly identified by the Disclosing Party. | Not mentioned |
597_nda-19 | 597_nda-19_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Some obligations of Agreement may survive termination of Agreement. | Not mentioned |
597_nda-12 | 597_nda-12_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party may independently develop information similar to Confidential Information. | Entailment |
597_nda-20 | 597_nda-20_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Not mentioned |
597_nda-3 | 597_nda-3_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Confidential Information may include verbally conveyed information. | Not mentioned |
597_nda-18 | 597_nda-18_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Not mentioned |
597_nda-7 | 597_nda-7_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Contradiction |
597_nda-17 | 597_nda-17_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Not mentioned |
597_nda-8 | 597_nda-8_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. | Not mentioned |
597_nda-13 | 597_nda-13_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party may acquire information similar to Confidential Information from a third party. | Not mentioned |
597_nda-5 | 597_nda-5_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party may share some Confidential Information with some of Receiving Party's employees. | Contradiction |
597_nda-4 | 597_nda-4_0 | EXHIBIT 10.8
AGREEMENT CONCERNING NON-DISCLOSURE/NON-CIRCUMVENTION
It is understood that this is a Proprietary Information and Non-Competition Agreement with regards to Yann Mellet (“Mellet”) and Sweetskinz, Inc., a Pennsylvania corporation (“Sweetskinz”). Mellet and Sweetskinz shall be sometimes collectively be referred to as “Parties". It is understood further that changes to this Agreement must be in writing and acknowledged by the Parties.
The Agreement contains material restrictions on Mellet’s right to (i) compete with Sweetskinz, or (ii) disclose or use information learned or developed by Mellet through his association with or as an employee of Sweetskinz from the beginning of time through April 4, 2016 (“Term”).
1. CONSIDERATION
Mellet shall receive 5,123,878 shares of Sweetskinz common stock (“Shares”) as full consideration for this Agreement.
2. NON-COMPETITION AND NON-SOLICITATION
(a) In consideration of Sweetskinz’s agreement to provide Mellet with the Shares, Mellet agrees:
(1) to refrain, directly or indirectly, during the Term from accepting business from, doing business with, inducing or soliciting any Sweetksinz customers to whom Mellet rendered any services during the course of Mellet’s employment with Sweeetskinz, to do business with Mellet, or with any other person or entity, in competition with the type of services performed by Mellet for Sweetskinz except on behalf of and as an authorized representative of Sweetskinz.
(2) to refrain, directly or indirectly, during the Term from accepting business from, doing business with or inducing or soliciting, any Sweetskinz vendor who is instrumental in any aspect of the design, development, production or sales of any Sweetskinz product.
(3) to refrain, directly or indirectly, during the Term from having any interest in or association with any business which competes with Sweetskinz pneumatic colorized tire products or any other future Products produced by Sweetskinz. Such entities shall include any related entity in which Mellet or his immediate family is a shareholder, director, officer, employee, partner, proprietor, joint venturer, consultant or otherwise, anywhere worldwide.
(4) any idea, concept, technique, invention, creation, copyrightable or patentable work ("Product") relating to pneumatic colorized tires or other products sold or developed by Sweetskinz, that Mellet is instrumental in creating, developing or producing, or helping to create, develop or produce, during the time that Mellet is employed by Sweetskinz shall be considered owned by Sweetskinz, whether conceived by Mellet individually or jointly, on or off Sweetskinz's premises. Mellet hereby irrevocably assigns such Product to Sweetskinz and authorizes Sweetskinz to execute on Mellet’s behalf such documents as it may deem necessary to confirm and protect its interests therein. However, Mellet may develop products which do not in any material way compete with any Product of Sweeetskinz so long as such development is of no cost to Sweetskinz, is done after “working hours” (defined as 45-hour work week) and does not interfere with Mellet’s responsibilities as the Chief Technology Officer of Sweetskinz.
Mellet acknowledges that this Section 2 is reasonable, among other things, because Sweetskinz anticipates selling its products on all continents of the world and developing relationships with manufacturers, wholesalers and retailers on such continents
3. CONFIDENTIALITY:
Each Party agrees at all times during the Term to hold in the strictest confidence, and not use, except for the benefit of the Parties or to disclose, transfer or reveal, directly or indirectly to any person or entity any confidential information.
4. INJUNCTIVE RELIEF:
If Sweetskinz so elects, Sweetskinz shall be entitled, in addition to all other remedies available, including but not limited to actual, compensatory and punitive damages, or to specifically enforce the performance by Mellet and to enjoin the violation by Mellet of any provision hereof. Moreover, the parties hereto acknowledge that the damages suffered by Sweetskinz as a result of any violations of Section 2 by Mellet may be difficult to ascertain and Sweetskinz may not have an adequate remedy at law. Accordingly, the parties agree that in the event of a breach by Mellet of Paragraph 2, Sweetskinz shall be entitled to specific enforcement by injunctive relief of Mellet’s obligations to Sweetskinz, without bond and such remedies shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise.
The remedies referred to above shall not be deemed to be exclusive of any other remedies available to Sweetskinz, by judicial or arbitral proceedings or otherwise, including to enforce the performance or observation of the covenants and agreements contained in this Agreement.
5. ATTORNEY’S FEES:
It is agreed that if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement the successful Party or Parties, as the case may be, shall be entitled to recover reasonable attorney’s fees and other costs incurred in that proceeding in addition to any other relief or judgment to which it may be entitled.
6. GENERAL:
The obligations under the Agreement are binding upon the heirs, assigns and legal representatives. This Agreement is governed by the laws of Pennsylvania. If any of this Agreement is more restrictive than permitted by law in any jurisdiction in which enforcement is sought, this Agreement will be limited only to the extent necessary to bring this Agreement within the law of such jurisdiction and other provisions of the Agreement will remain in force.
The parties signing below have read and understood this Agreement and agree to its terms and conditions.
April 6, 2006
SWEETSKINZ, INC.
By: /s/ Andrew Boyland
Andrew Boyland
Chief Executive Officer
/s/ Yann Mellet
Mr. Yann Mellet
| Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. | Entailment |
599_nda-11 | 599_nda-11_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Not mentioned |
599_nda-16 | 599_nda-16_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Not mentioned |
599_nda-15 | 599_nda-15_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Agreement shall not grant Receiving Party any right to Confidential Information. | Entailment |
599_nda-10 | 599_nda-10_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Not mentioned |
599_nda-2 | 599_nda-2_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Confidential Information shall only include technical information. | Contradiction |
599_nda-1 | 599_nda-1_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| All Confidential Information shall be expressly identified by the Disclosing Party. | Not mentioned |
599_nda-19 | 599_nda-19_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Some obligations of Agreement may survive termination of Agreement. | Not mentioned |
599_nda-12 | 599_nda-12_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party may independently develop information similar to Confidential Information. | Entailment |
599_nda-20 | 599_nda-20_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Not mentioned |
599_nda-3 | 599_nda-3_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Confidential Information may include verbally conveyed information. | Not mentioned |
599_nda-18 | 599_nda-18_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Not mentioned |
599_nda-7 | 599_nda-7_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Entailment |
599_nda-17 | 599_nda-17_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Entailment |
599_nda-8 | 599_nda-8_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. | Not mentioned |
599_nda-13 | 599_nda-13_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party may acquire information similar to Confidential Information from a third party. | Entailment |
599_nda-5 | 599_nda-5_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party may share some Confidential Information with some of Receiving Party's employees. | Entailment |
599_nda-4 | 599_nda-4_0 | `
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective Date: 11/22/05
In order to protect certain confidential information which may be disclosed by Raphael Industries, Inc ("Company") to Marketing Software Company ("MSC"), it is agreed that:
1. The confidential information disclosed by Company to MSC under this Agreement is described as: customer and prospective customer contact data ("Information").
2. MSC shall protect the Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Information as MSC uses to protect its own confidential information of a like nature.
3. This Agreement imposes no obligation upon MSC with respect to the Information which (a) was in MSC's possession before receipt from the Company; (b) is or becomes a matter of public knowledge through no fault of MSC; (c) is rightfully received by MSC from a third party without a duty of confidentiality; (d) is disclosed by the Company to a third party without a duty of confidentiality on the third party; (e) is independently developed by MSC; (f) is disclosed under operation of law; or (g) is disclosed by MSC with the Company's prior approval.
4. MSC recognizes that the Information is the sole property of Company, is confidential, and is to be held by MSC in the strictest confidence.
5. MSC recognizes that the Information constitutes a valuable property of the Company. MSC agrees that it will not permit any person, firm or corporation to use, copy or reproduce in any manner whatsoever any part of the Information, except to the extent that the Information must be reproduced by MSC in performing its data processing services.
6. All additions or modifications to the Agreement must be made in writing and must be signed by both parties.
7. This Agreement is made under and shall be construed according to the laws of the State of California.
ARNE RAABE BRUCE MORGAN
Arne Raabe Bruce K. Morgan
Director Vice President, Sales
Raphael Industries, Ltd Marketing Software Company
268 Bush Street # 4205 6200 Canoga Ave, Suite 102
San Francisco, CA 94104 Woodland Hills, CA 91367
| Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. | Entailment |
602_nda-11 | 602_nda-11_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Not mentioned |
602_nda-16 | 602_nda-16_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Not mentioned |
602_nda-15 | 602_nda-15_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Agreement shall not grant Receiving Party any right to Confidential Information. | Entailment |
602_nda-10 | 602_nda-10_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Entailment |
602_nda-2 | 602_nda-2_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Confidential Information shall only include technical information. | Contradiction |
602_nda-1 | 602_nda-1_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| All Confidential Information shall be expressly identified by the Disclosing Party. | Not mentioned |
602_nda-19 | 602_nda-19_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Some obligations of Agreement may survive termination of Agreement. | Not mentioned |
602_nda-12 | 602_nda-12_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party may independently develop information similar to Confidential Information. | Entailment |
602_nda-20 | 602_nda-20_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Entailment |
602_nda-3 | 602_nda-3_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Confidential Information may include verbally conveyed information. | Not mentioned |
602_nda-18 | 602_nda-18_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Entailment |
602_nda-7 | 602_nda-7_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Entailment |
602_nda-17 | 602_nda-17_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Not mentioned |
602_nda-8 | 602_nda-8_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. | Entailment |
602_nda-13 | 602_nda-13_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party may acquire information similar to Confidential Information from a third party. | Entailment |
602_nda-5 | 602_nda-5_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party may share some Confidential Information with some of Receiving Party's employees. | Entailment |
602_nda-4 | 602_nda-4_0 | Exhibit 99.(d)(9)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the laws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor,st Miami, FL 33131 (“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.
WHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets and due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the “Transaction”); and
WHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such information confidential.
NOW THEREFORE, the Parties agree as follows:
1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its Representatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing information, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and proprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its representatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the Transaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or proprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or reasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the Transaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement, “Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives, consultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential Information and excluding, in each case, any portfolio companies.
2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the receiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving Party; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this Agreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s knowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by written authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential Information.
3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.’ S evaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise permitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be otherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to disseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the confidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential Information and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law, neither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been made available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and conditions of such discussions, including the status thereof.
4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this Agreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written consent from COMVERGE and the appropriate license.
5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.
6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations or laws, including but not limited to the rules of any securities trading exchange or securities quotation system, 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, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify COMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive compliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of this Agreement.
7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction, all Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers), including all intellectual property rights pertaining thereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE, H.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative or principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except as permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential Information as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by law, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this Agreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole purpose of prosecuting or defending any matters which may arise from or relate to this Agreement.
8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to remedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of gross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including, but not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or failure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether expressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at law or in equity.
9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public information concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you will not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by the Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, and as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any of the restrictions set forth above in this section.
10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or other key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall not apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.
11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a period of two (2) years after the date hereof.
12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both Parties hereto.
14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest in or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential Information shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities, bank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United States securities laws.
15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE’s affiliates or by any company, person or other entity participating with COMVERGE, in any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise constitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this Agreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final, nonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred pursuing such proceeding.
17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.
18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other form of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an implied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any potential agreement between the Parties or (v) an agreement to enter into any agreement.
19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the intention and essence of this Agreement may still be accomplished and satisfied.
20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary Information or breach of this Agreement of which it is aware.
21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE GIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.
22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to Confidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and agreements contained herein.
23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals or affiliated investment funds that do not receive Confidential Information hereunder
IN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.
COMVERGE, INC.
/s/ David Mathieson
Printed Name: David Mathieson
Title: Executive Vice President & Chief Financial Officer
H.I.G. MIDDLE MARKET, LLC
/s/ Joe Zulli
Printed Name: Joe Zulli
Title: Principal
| Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. | Entailment |
603_nda-11 | 603_nda-11_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Not mentioned |
603_nda-16 | 603_nda-16_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Entailment |
603_nda-15 | 603_nda-15_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Agreement shall not grant Receiving Party any right to Confidential Information. | Entailment |
603_nda-10 | 603_nda-10_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Entailment |
603_nda-2 | 603_nda-2_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Confidential Information shall only include technical information. | Contradiction |
603_nda-1 | 603_nda-1_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| All Confidential Information shall be expressly identified by the Disclosing Party. | Not mentioned |
603_nda-19 | 603_nda-19_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Some obligations of Agreement may survive termination of Agreement. | Entailment |
603_nda-12 | 603_nda-12_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Receiving Party may independently develop information similar to Confidential Information. | Not mentioned |
603_nda-20 | 603_nda-20_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Not mentioned |
603_nda-3 | 603_nda-3_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Confidential Information may include verbally conveyed information. | Entailment |
603_nda-18 | 603_nda-18_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Not mentioned |
603_nda-7 | 603_nda-7_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Entailment |
603_nda-17 | 603_nda-17_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Not mentioned |
603_nda-8 | 603_nda-8_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. | Not mentioned |
603_nda-13 | 603_nda-13_0 | Exhibit 99.3/A
CONFIDENTIALITY/STANDSTILL AGREEMENT
THIS AGREEMENT is dated as of the 26th day of September, 2007
AMONG:
SWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine Fiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland (“Swansi”);
AND:
ZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610− 1066 West Hastings Street, Vancouver, BC V6E 3X2 (“Zulu”)
WHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of shares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi (the “Acquisition”).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the exchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably requested from time to time and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 CONFIDENTIALITY
Confidential Information
1.1 For purposes of this Agreement, the term confidential information (“Confidential Information”) shall mean all financial and other nonpublic information, together with notes, analyses, compilations, studies or other documents prepared or provided by the disclosing party in connection with the evaluation of the Acquisition. Confidential Information shall also include proprietary information concerning the respective businesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models, data, documentation, code, research, development, processes, procedures, business strategy, marketing timetables, pricing policies, financial information and other information of a similar nature, whether or not reduced to writing or other tangible form. Confidential Information shall not include (a) information known to a receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing party (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing Party; or (c) information approved for release by written authorization of an authorized officer of the Disclosing Party.
Representatives
1.2 For purposes of this Agreement, the term representatives (“Representatives”) shall mean each party, their directors, officers and employees, as well as their counsel, accountants, consultants and other representatives in connection with the transactions contemplated hereby provided that such persons are bound by confidentiality agreements no less stringent than those in this Agreement.
Use of Confidential Information
1.3 Each party will use the Confidential Information it receives solely for the purpose of evaluating the Acquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will keep such Confidential Information strictly confidential, provided, however, that Confidential Information may be disclosed to such Representatives as needed to know such information for the purpose of evaluating and negotiating the terms of the Acquisition and for no other purpose.
Non-Disclosure
1.4 Except to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following the conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their respective Representatives to not disclose to any person or entity that the Confidential Information has been made available, that discussions or negotiations are taking place or have recently taken place concerning the Acquisition, or any of the terms, conditions or other facts with respect to any other possible transaction between the parties hereto.
Property Rights Maintained
1.5 Confidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the event that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within five (5) days after being so requested by either party, both parties shall return or destroy all documents furnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations set forth in this Agreement.
ARTICLE 2 STANDSTILL
Zulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either party notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”), that they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any third party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger, consolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the event Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written notice to Swansi within two business days of its receipt by Zulu or its principals.
ARTICLE 3 NON-CIRCUMVENTION
Suppliers and Customers
3.1 The parties hereto agree that they shall not solicit business from any supplier, customer, client or contact of any other party hereto for the purpose of circumventing the relationship between such party and such supplier, customer, client and/or competing with such party during the Term of this Agreement without prior written consent.
Material Inducement
3.2 Each party hereto acknowledges and agrees that the other parties hereto have a material interest in preserving the relationships they have developed with their customers and employees against impairment by competitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and covenants contained in this Agreement are of the essence of this Agreement and constitute a material inducement by the each party to the other to disclose the Confidential Information.
ARTICLE 4 INJUNCTION
The parties hereto agree that money damages would not be a sufficient remedy for any breach of this Agreement and that in addition to other remedies, each offended party shall be entitled to specific performance
and injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting of a bond to secure any such equitable relief hereunder.
ARTICLE 5 DEFINITIVE AGREEMENTS; DISCLOSURE
The parties hereto will use their best efforts to enter into a definitive acquisition agreement and any other documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a definitive agreement has not been entered into by such date, then this Agreement will have no further force or effect except for Articles 1, 3, 4, 5 and 6 hereof.
ARTICLE 6 MISCELLANEOUS
Successors and Assigns; Waiver; Governing Law
6.1 This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and enforced under the laws of the State of Colorado.
Notices
6.2 Any notice or communication required or permitted hereunder must be in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail, postage prepaid, to the addresses stated above or to such other address or to the attention of such other person as the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or communication will be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein.
Counterparts
6.3 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by themselves or their duly authorized officers, as appropriate, as of the date first written above.
SWANSI HOLDINGS CORP.
s/s: Gareth Corbin
Gareth Corbin, Director
ZULU ENERGY CORP.
s/s Paul Stroud
Paul Stroud, President
| Receiving Party may acquire information similar to Confidential Information from a third party. | Not mentioned |