id
stringlengths 8
10
| pid
stringlengths 10
12
| input
stringlengths 1.48k
54.6k
| input_prefix
stringclasses 17
values | output
stringclasses 3
values |
|---|---|---|---|---|
603_nda-5 | 603_nda-5_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 of Receiving Party's employees. | Entailment |
603_nda-4 | 603_nda-4_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 use any Confidential Information for any purpose other than the purposes stated in Agreement. | Entailment |
604_nda-11 | 604_nda-11_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Entailment |
604_nda-16 | 604_nda-16_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Not mentioned |
604_nda-15 | 604_nda-15_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Agreement shall not grant Receiving Party any right to Confidential Information. | Entailment |
604_nda-10 | 604_nda-10_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Entailment |
604_nda-2 | 604_nda-2_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Confidential Information shall only include technical information. | Contradiction |
604_nda-1 | 604_nda-1_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| All Confidential Information shall be expressly identified by the Disclosing Party. | Contradiction |
604_nda-19 | 604_nda-19_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Some obligations of Agreement may survive termination of Agreement. | Entailment |
604_nda-12 | 604_nda-12_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party may independently develop information similar to Confidential Information. | Entailment |
604_nda-20 | 604_nda-20_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Entailment |
604_nda-3 | 604_nda-3_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Confidential Information may include verbally conveyed information. | Entailment |
604_nda-18 | 604_nda-18_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Entailment |
604_nda-7 | 604_nda-7_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Entailment |
604_nda-17 | 604_nda-17_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Not mentioned |
604_nda-8 | 604_nda-8_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. | Entailment |
604_nda-13 | 604_nda-13_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party may acquire information similar to Confidential Information from a third party. | Entailment |
604_nda-5 | 604_nda-5_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party may share some Confidential Information with some of Receiving Party's employees. | Entailment |
604_nda-4 | 604_nda-4_0 | CONFIDENTIALITY AGREEMENT
August 29, 2010
Pat Gelsinger, President and Chief Operating Officer
EMC Corporation
176 South Street
Hopkinton, MA 01748
Dear Mr. Gelsinger:
In connection with your consideration of a possible negotiated strategic transaction between Isilon Systems, Inc. (“Isilon”) and EMC Corporation (“you”; and each of Isilon and you, a “party”; and such transaction, a “Transaction”), Isilon and you have made and expect to make available to one another certain non-public, confidential and/or proprietary information concerning their respective businesses, financial condition, plans and prospects, operations, employees, assets, technology and liabilities. In consideration of such information being furnished to each party and/or its subsidiaries, directors, officers, employees, authorized agents and representatives, or advisors (including, without limitation, financial advisors, attorneys, accountants and other consultants engaged in connection with the Transaction, but expressly excluding any partners or other third parties (other than the subsidiaries of a party) who will or may provide equity, debt or other financing for a Transaction) (collectively, “Representatives”), each party agrees to treat such information about the disclosing party or about any third party (whether or not such information is marked as confidential) that is furnished now or in the future, or that was furnished prior to the date hereof for the purpose of the consideration of, or in connection with, a Transaction, to the receiving party or its Representatives by or on behalf of the disclosing party (whether prepared by the disclosing party, its advisors or otherwise and irrespective of the manner or form in which it was furnished, whether oral, written, electronic or in some other form) (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this Confidentiality Agreement (this “Agreement”), and to take or abstain from taking certain other actions, as set forth below.
(1) Evaluation Material. In addition to the foregoing, the term “Evaluation Material” also shall be deemed to include (i) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction and any of the terms, conditions or other facts with respect thereto (including the status thereof), and (ii) the portion of any notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain or describes the information furnished to such party or its Representatives pursuant hereto. The term “Evaluation Material” does not include, however, information which (A) is or becomes generally available to the public through no fault of (including any breach of this Agreement by) the receiving party or any of its Representatives, (B) was within the receiving party’s possession prior to its being furnished to the receiving party or its Representatives by or on behalf of the disclosing party, provided that the receiving party was not aware (after reasonable due inquiry) that the source of such information was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party, (C) is or becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its Representatives, provided the receiving party was not aware (after reasonable due inquiry) that such source was bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the disclosing party with respect to such information, (D) is independently developed by the receiving party without use of or reference to any Evaluation Material, or (E) is required to be disclosed to a third party under operation of applicable law.
(2) Purpose of Disclosure of Evaluation Material. Each party understands and agrees that it will be disclosing to the other party and/or its Representatives under this Agreement (i) information solely for the purpose of enabling the receiving party and its Representatives to evaluate a Transaction, and reasonably believes that such disclosure will not affect, in any way, the parties’ relative competitive position with respect to each other or to any third parties (including any of the parties’ affiliates), and (ii) only that information which is reasonably necessary to enable each party and its Representatives to evaluate a Transaction (and that information which is not reasonably necessary for such purpose will not be disclosed to a party or its Representatives). For purposes of determining when information is reasonably necessary for such purpose, the parties may request that legal counsel to each party agree, in advance, to review certain information requests so as to comply with such standard. In addition, each party understands and agrees that review of competitively sensitive information, such as information concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, which has been determined to be reasonably necessary to evaluate a Transaction will be limited only to those senior executives of the receiving party and its Representatives who are involved in evaluating or negotiating a Transaction or approving the value of a Transaction. If Evaluation Material includes software in object code form, the receiving party shall not, and shall not permit any other party to, reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof.
(3) Non-Disclosure and Use of Evaluation Material. Each party agrees that it shall (and it shall cause its Representatives to) use the Evaluation Material solely for the purpose of evaluating a Transaction and for no other purpose, and that the receiving party shall (and shall cause its Representatives to) keep the Evaluation Material confidential and not disclose any Evaluation Material to any third party; provided, however, that the receiving party may disclose any Evaluation Material (x) if the disclosing party gives its prior express written consent to such disclosure, or (y) to its Representatives who are actively or directly participating in its evaluation of a Transaction or who otherwise need to know such information for the sole purpose of evaluating a Transaction (and the receiving party shall take appropriate measures to ensure that its Representatives comply with the terms of this Agreement).
(4) Required Disclosure. In the event that a party or any of its Representatives are requested pursuant to, or required by, applicable law, regulation (including, without limitation, any rule or regulation of any national securities exchange or stock market on which any of the receiving party’s securities are listed or quoted) or legal process to disclose any of the Evaluation Material, the party requested or required to make the disclosure shall, unless legally prohibited from doing so, provide the other party with prompt notice of such request or requirement in order to enable the other party to (i) seek an appropriate protective order or other remedy, (ii) consult with the party requested or required to make the disclosure and its Representatives with respect to taking steps to resist or narrow the scope of such request or legal process (and such party shall reasonably cooperate with the other party in this respect and, if such cooperation is material, at the other party’s sole expense), or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested or required to make the disclosure or any of its Representatives are nonetheless, upon the advice of outside counsel, legally compelled to disclose any Evaluation Material, the party requested or required to make the disclosure or any of its Representatives may disclose only that portion of the Evaluation Material which is legally required to be disclosed based on the advice of outside counsel, provided that the party requested or required to make the disclosure uses reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the disclosing party (and, if such cooperation is material, at the disclosing party’s sole expense) to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Evaluation Material.
(5) Privileged Information. To the extent that any Evaluation Material may include material 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 common legal interests with respect to such matters and it is their desire, intention and mutual 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. All Evaluation Material provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
(6) Termination of Discussions. All Evaluation Material shall remain the property of the disclosing party and the receiving party agrees not to assert any claim of title or ownership in the disclosing party’s Evaluation Material or any portion thereof. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly inform the other party of that decision by giving a written notice of termination. At any time upon the request of either disclosing party for any reason, each receiving party and its Representatives shall promptly deliver to the disclosing party or destroy all Evaluation Material (and all copies, reproductions thereof) furnished to the receiving party or its Representatives by or on behalf of the disclosing party pursuant hereto (whether in hard-copy form or on intangible media, such as electronic mail or computer files), provided, however, that, the receiving party or its Representatives shall not, in connection with the foregoing obligations, be required to identify or delete Evaluation Material held electronically in archive or backup systems in accordance with general systems archiving and backup policies. Upon the request of the disclosing party, a duly authorized representative of the receiving party shall certify to the disclosing party that the receiving party and its Representatives have complied with this paragraph (6). Notwithstanding the return or destruction of all Evaluation Material, each party and its Representatives shall continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by the disclosing party or on its behalf to the receiving party or its Representatives. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or any of its Representatives relating to or resulting from the use of or reliance upon any Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
(8) Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered, and until such time, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party reserves the right, in its sole and absolute discretion, to provide or not provide Evaluation Material to the other party or its Representatives under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions and negotiations at any time.
(9) Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a repurchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of five percent (5%) or more of any securities or assets of Isilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, own) including, without limitation, rights or options to acquire such ownership;
(b) seek or propose to influence, advise, change or control the management, Board of Directors, governance or certificate of incorporation or bylaws, including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this provision or any other provision of this paragraph (9);
(e) make any public disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to any of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing.
Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the surviving or resulting entity in such transaction (or its ultimate parent) immediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire a majority of the equity or voting securities of Isilon and the Board of Directors of Isilon shall have failed to recommend that the stockholders of Isilon reject such tender or exchange offer in the Schedule 14D-9 related thereto (or any amendment thereof).
(10) Non-Solicit. For a period of twelve (12) months from the date of this Agreement, each party agrees that it will not, directly or indirectly (including through its Representatives), solicit for employment any employee of the other party or its subsidiaries who such party comes in contact with, or is introduced to, or is discussed as a key employee, in connection with a Transaction; provided, however, that the foregoing shall not be deemed to prohibit (x) general solicitations of employment conducted through customary means and not specifically directed toward employees of the other party, or (y) the employment of any person who contacts a party on his or her own initiative without any violation of the foregoing provisions.
(11) Securities Laws. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
(12) Miscellaneous Provisions. Each party understands and agrees 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. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In addition, each party agrees to be responsible for any breach of this Agreement by any of its Representatives and, as such, each party agrees that if any of its Representatives takes any action that, if taken by the party, would be a breach of this Agreement by such party, then such action by its Representatives shall be deemed to be and constitute a breach of this Agreement by such party for which such party shall be principally responsible and liable. Each party hereby represents that it has the power and authority (including corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms. The term of this Agreement shall be five (5) years from the date first written above. This Agreement may be executed in two or more counterparts. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
(13) Injunctive Relief. Each party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or any of its Representatives and that the non-breaching party would be entitled to seek equitable relief, including an injunction and/or specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
(14) Entire Agreement; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware that are applicable to agreements made and to be performed within such State and without regard to its conflicts of laws rules or principles. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, by and between the parties with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
Please confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you and Isilon.
Very truly yours,
ISILON SYSTEMS, INC.
By: /s/ Sujal M. Patel
Sujal M. Patel
President and Chief Executive Officer
Accepted and agreed as of the date first written above:
EMC CORPORATION
By: /s/ Paul T. Dacier
Name: Paul T. Dacier
Title: EVP & General Counsel
| Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. | Entailment |
607_nda-11 | 607_nda-11_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Not mentioned |
607_nda-16 | 607_nda-16_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Entailment |
607_nda-15 | 607_nda-15_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Agreement shall not grant Receiving Party any right to Confidential Information. | Entailment |
607_nda-10 | 607_nda-10_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Entailment |
607_nda-2 | 607_nda-2_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Confidential Information shall only include technical information. | Contradiction |
607_nda-1 | 607_nda-1_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| All Confidential Information shall be expressly identified by the Disclosing Party. | Not mentioned |
607_nda-19 | 607_nda-19_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Some obligations of Agreement may survive termination of Agreement. | Entailment |
607_nda-12 | 607_nda-12_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party may independently develop information similar to Confidential Information. | Entailment |
607_nda-20 | 607_nda-20_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Entailment |
607_nda-3 | 607_nda-3_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Confidential Information may include verbally conveyed information. | Entailment |
607_nda-18 | 607_nda-18_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Entailment |
607_nda-7 | 607_nda-7_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Entailment |
607_nda-17 | 607_nda-17_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Not mentioned |
607_nda-8 | 607_nda-8_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. | Entailment |
607_nda-13 | 607_nda-13_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party may acquire information similar to Confidential Information from a third party. | Entailment |
607_nda-5 | 607_nda-5_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party may share some Confidential Information with some of Receiving Party's employees. | Entailment |
607_nda-4 | 607_nda-4_0 | Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made to be effective as of July 4, 2016 by and between NXP B.V., a company incorporated in the Netherlands and organized and existing under the laws of the Netherlands with its principal place of business at High Tech Campus 60, 5656 AG Eindhoven, acting on its behalf and on behalf of NXP affiliated companies (“NXP”); and QUALCOMM Incorporated, a company incorporated in the State of Delaware, U.S.A., with its principal place of business at 5775 Morehouse Drive, San Diego, California 92121 U.S.A. (the “Company”), (together, the “Parties”).
WHEREAS, The Parties desire to exchange information, including certain financial, technical, product, operations and other business information solely for the purpose of evaluating a potential acquisition of NXP by the Company or a comparable negotiated transaction between the Company and NXP (the “Permitted Purpose” or the “Transaction”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information
For the purposes of this Agreement “Confidential Information” means all information concerning or provided by the disclosing Party (“Disclosing Party”) to the receiving Party (“Receiving Party”) or its Representatives (whether in writing, or in oral, graphic, electronic or any other form and including information made available or furnished prior to the date hereof) that is reasonably understood by the Receiving Party from the context of disclosure or from the information itself, to be confidential, and any report, analysis, compilation, study, interpretation, forecast, model, interpretation, third-party agreements or materials, trade secrets, customer and supplier information, product information, product roadmaps, records, memoranda or other material prepared or maintained by the Receiving Party, in whatever form (whether documentary, computer storage or otherwise) to the extent containing, reflecting, derived from, based upon or referring to, in whole or in part, any such information. “Representatives” means, with respect to a Party, such Party’s wholly owned subsidiaries, directors, officers, employees, consultants, accountants, financial and legal advisors and, with and subject to the prior written consent of the Disclosing Party, any actual or potential sources of debt financing (including any affiliate of any financial advisor acting in such capacity and their counsel) and other representatives which are identified to the Disclosing Party and who shall be subject to confidentiality obligations at least as stringent as a Receiving Party hereto. The term “Representatives” does not include any potential equity investors or co-bidders and nothing in this Agreement shall permit the Receiving Party or its Representatives, directly or indirectly, to enter into any discussions, negotiations, arrangements or understandings with, or to share any Confidential Information with, any person with respect to participation as an equity investor or as a co-bidder in connection with any possible Transaction, or to propose to any other person to participate as an equity investor or as a co-bidder in connection with any possible Transaction or to advise, assist, encourage, act as an equity financing source for or otherwise invest in any other person in connection with any of the foregoing activities.
2. Obligations of Confidentiality
Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that could result to the Disclosing Party if Confidential Information contained therein is disclosed to any person. As a condition to and in consideration of Confidential Information being provided to the Receiving Party and its Representatives, each Receiving Party undertakes and agrees as follows:
(a) to hold and cause its Representatives to hold Confidential Information provided hereunder now or in the future in accordance with the provisions of this Agreement and not to disclose or permit it to be disclosed to any person, firm or company other than the Receiving Party’s Representatives who need to know such information for the Permitted Purpose;
(b) only to use the Confidential Information for the Permitted Purpose and not for any other purpose;
(c) to ensure that each Representative to whom disclosure of Confidential Information is made by the Receiving Party is fully aware in advance of the Receiving Party’s obligations under this Agreement and to take full responsibility and remain fully liable for any actions or omissions of its Representatives that are not in accordance with this Agreement; and
(d) to keep confidential and not reveal to any person, firm or company (other than Representatives) the fact that Confidential Information has been made available in connection with the Permitted Purpose, that discussions or negotiations are taking place or have taken place between the Parties concerning a potential Transaction between the Parties, including the status of such discussions or the termination of such discussions or negotiations, or any opinions or view with respect to the Confidential Information.
Each Party hereby acknowledges that it is aware, and it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that Confidential Information may include material non-public information and that United States securities laws impose restrictions on trading securities when in possession of such information and on communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to trade in such securities.
Neither Party nor its Representatives will initiate any communications with any Representatives of the other Party concerning the Confidential Information, nor shall either Party or its Representatives contact any member of management or any employee of the other Party or any customers, suppliers or other third parties that conduct business with the other Party, in each case other than (a) individuals who have been specifically designated and approved by the other Party for such communications and (b) customers, suppliers or other third parties that the Party or its Representatives communicate with in the ordinary course of their respective businesses so long as such communications are made in the ordinary course of business and do not reference any Confidential Information.
3. Exceptions
The obligations of Sections 2(a)-(c) of this Agreement shall not apply to any information which is (i) now or becomes generally available to the public in the future, other than through acts or omissions of the Receiving Party or its Representatives in violation of this Agreement, (ii) lawfully obtained by the Receiving Party from sources independent of Disclosing Party; provided such source was not, to the Receiving Party’s knowledge, bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from transmitting such information by contractual, legal, fiduciary or other obligation, or (iii) independently developed by the Receiving Party or the Receiving Party’s Representatives without the benefit or usage of or reference to the Confidential Information. The fact that information included in the Confidential Information is or becomes otherwise available to the Receiving Party or its Representatives under clauses (i) through (iii) above shall not relieve the Receiving Party or its Representatives of the prohibitions of the confidentiality provisions of this Agreement with respect to the balance of the Confidential Information.
Notwithstanding anything to the contrary set forth herein, in the event that either Party or any of its Representatives is required (by law, regulation, court order or legal process) to disclose any of the Confidential Information or any of the information which is subject to the provisions of Section 2(d) above, such Party will provide the other Party with prompt written notice of such requirement prior to disclosure so that such Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained within the time limit of the requested or legally required disclosure, the Party compelled to disclose Confidential Information will furnish only that portion of the Confidential Information or take only such action as is requested or legally required based upon the advice of its legal counsel and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information (or other information required to be kept confidential pursuant to this Agreement) so furnished. The Receiving Party shall cooperate with any reasonable action requested by the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. Return of Confidential Information; Limited Access Confidential Information
(a) If either Party decides that it does not wish to proceed with a Transaction, such Party will promptly inform the other Party of that decision. In that case, or at any time at the Disclosing Party’s request, the Receiving Party shall promptly return to Disclosing Party, or, with the Disclosing Party’s written permission, destroy, and certify to the Disclosing Party in writing such destruction of, all materials (in whatever form) constituting Confidential Information of the Disclosing Party, including any notes, copies, summaries, extracts or other tangible embodiments thereof in whole or in part thereof, and such materials shall not be retained by the Receiving Party in any form or for any reason. All Confidential Information stored electronically shall be permanently deleted. Thereafter, the Receiving Party shall not use such Confidential Information in any way for any purpose. Notwithstanding the foregoing (subject to Section 4(b)), (i) the obligations set forth in the second and third sentences of this Section 4(a) shall not apply to Confidential Information that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process and (ii) Representatives of a Receiving Party that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies of the Confidential Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation or professional standards or reasonable business practices; provided that such Representatives do not provide the Receiving Party with access to any such retained Confidential Information, in each case it being understood that such Confidential Information must be kept confidential in accordance with this Agreement.
(b) The Parties acknowledge and agree that certain highly-sensitive Confidential Information may in the reasonable discretion of the Disclosing Party be designated “Attorneys Eyes’ Only” (collectively, “Limited Access Confidential Information”). The Receiving Party agrees that access to Limited Access Confidential Information shall be granted only to attorney Representatives who have been pre-approved in writing (which may be by email) by the Disclosing Party (“Designated Representatives”). Without limiting the confidentiality obligations set forth in Section 2, the Receiving Party shall ensure that Limited Access Confidential Information (including any notes, extracts, summaries, copies or tangible embodiments thereof) is not disclosed to any Representative other than Designated Representatives; it being understood that the Designated Representatives can provide the Receiving Party with written or oral legal advice or analyses based on the review of such Limited Access Confidential Information. Without limiting Section 2(c), the Receiving Party shall be responsible for any breach of this Agreement by any of its Designated Representatives. With respect to Limited Access Confidential Information (including any notes, copies or tangible embodiments thereof), the Receiving Party’s obligations under Section 2 shall apply in perpetuity (unless one or more of the exceptions set forth in subsections (i), (ii) or (iii) of Section 3 applies). Upon termination of this Agreement or the request of the Disclosing Party, all notes, extracts, summaries, copies or tangible embodiments of Limited Access Confidential Information shall be permanently deleted and not retained by the Receiving Party, without exception, other than attorney work product and analyses based on the review of Limited Access Confidential Information by Designated Representatives that the Receiving Party stores on backup disks or in backup storage facilities automatically produced in the ordinary course of business consistent with past practice or by any applicable law, regulation, court order or legal process.
5. No Representations, Licence or Waiver
(a) Neither Party nor its Representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the Confidential Information or any use thereof and the Confidential Information is provided on an “as is” basis. Each Party will conduct its own independent investigation and analysis. Each Party agrees that neither Party nor its Representatives shall have any liability to the other Party or its Representatives resulting from the use of the Confidential Information (as permitted pursuant to this Agreement) other than as may be set forth in a definitive agreement between the Parties concerning the Transaction. Notwithstanding any other provision hereof, each Party reserves the right not to make available hereunder any information the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.
(b) As between the Parties, the Confidential Information (including notes, extracts, summaries, copies or tangible embodiments to the extent incorporating or reflecting the Confidential Information) remains the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any right or license to the Confidential Information or any intellectual property rights except for the limited right to use such Confidential Information for the Permitted Purpose as expressly set forth herein.
(c) Nothing in this Agreement shall obligate the Parties to proceed with any business relationship and each Party may terminate the discussions contemplated by this Agreement. Unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any legal obligation or liability to the other Party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement or any other written or oral expression with respect to the Transaction or otherwise.
(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding, investigation, inquiry, arbitration or dispute, each Party acknowledges that it and the other Party have a commonality of interest with respect to such action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agrees that it is their mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and it agrees to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges and doctrines.
6. NON-Solicitation
For a period commencing on the date of this Agreement and ending one (1) year thereafter (the “Specified Period”), each Party will not, directly or indirectly, solicit for employment any “Qualifying Person,” provided, however, that this section will not prevent either Party from: (a) engaging in discussions with a Qualifying Person where s/he has contacted such Party in response to (i) any general advertisement, job posting or similar notice; or (ii) an unsolicited resume or request for information from a Qualifying Person; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of such Party, or soliciting the employment of any specified officer or employee of a Party who is identified by any such recruiting firm or organization, in each case as long as such recruiting firm or organization does not directly target any officers or employees of a Party “Qualifying Person” shall mean any person who is an officer or employee of the other Party, who was introduced in person, by phone or email to the Party or its affiliates during the Specified Period in connection with evaluating a potential Transaction. “Qualifying Person” does not include any person whose employment with a Party was or is terminated by such Party, or who has received written notice that his/her employment with such Party will be terminated.
7. Term
Except as expressly set forth in Sections 4 and 6 herein, the confidentiality obligations in this Agreement will terminate on the second anniversary of the date of this Agreement; provided that (i) such termination shall in no way affect a breach of the terms of this Agreement which occurred prior to the date of such termination and (ii) the confidentiality obligations with respect to trade secrets included or reflected in the Disclosing Party’s Confidential Information shall survive termination in perpetuity (unless the exception set forth in subsection (i) of Section 3 applies). Without limiting the foregoing, the following provisions shall survive termination of this Agreement: Sections 1-5 and 7-10 and Section 12.
8. Remedies
Without limiting other remedies that may be available to the Disclosing Party, the Receiving Party agrees that damages may not be an adequate remedy for any breach (whether actual or threatened) of the provisions of this Agreement and that accordingly, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance or other equitable relief.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of New York, USA, without regard to its conflicts of law provisions, and the Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the borough of Manhattan, New York, State of New York, USA, in respect of any claim, dispute or difference arising out of or in connection with this Agreement.
10. Export Controls
The Receiving Party certifies that none of the Disclosing Party’s Confidential Information, or any portion thereof, will be exported to any country or otherwise used or distributed in violation of any applicable export control laws or regulations.
11. Standstill
For a period of twelve (12) months after the date of this Agreement, unless it shall have been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any securities of the other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a significant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (d) any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party; (ii) form, join or in any way participate in a group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) take any action which might result in the other Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing; or (vi) disclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of this Section 11 (including this sentence). In the event that NXP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, of not less than a majority of the outstanding voting equity of NXP in the election of directors or all or substantially all of the assets of NXP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) the Company may, without the separate invitation, consent or authorization of NXP, make (A) a non-public, private Acquisition proposal to NXP for consideration by the Board of Directors of NXP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of NXP and shall not be made publicly unless and until either (I) the Board of Directors or NXP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or NXP has entered into negotiations with the Company within such 3 business day period, NXP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) the restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any securities of the other Party or any of its subsidiaries, shall not constitute a breach of this Section 11.
12. General Provisions
This Agreement may be signed in one or more counterparts, each of which need not contain the signature of all Parties hereto, and all such counterparts taken together shall constitute a single agreement. This Agreement shall constitute the entire agreement between the Parties hereto with regard to the subject matter hereof and supersedes all prior agreements and understandings relating thereto. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party. Any attempted assignment by a Party in violation of this Section 12 will be void and of no force or effect. The provisions and covenants set forth in this Agreement may be amended, modified or waived only by an instrument in writing executed by both Parties. 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 further exercise thereof or the exercise of any other right, power, or privilege hereunder. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. All notices, requests and other communications called for by this Agreement will be deemed to have been given immediately if made by email (if confirmed by concurrent written notice sent U.S. First-Class Mail, postage prepaid), if to the following email addresses (if to NXP): guido.dierick@nxp.com or jennifer.wuamett@nxp.com and the following email addresses (if to the Company): aschwenk@qualcomm.com or denrique@qualcomm.com, or to such other addresses as either Party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the Party to which notice is provided.
IN WITNESS WHEREOF this Agreement has been made to be effective as of the date first above written.
NXP B.V.
By /s/ Guido R.C. Dierick
Name: Guido R.C. Dierick
Title: Executive Vice President, General Counsel
QUALCOMM Incorporated
By /s/ Adam Schwenker
Name: Adam Schwenker
Title: Vice President, Legal Counsel and Assistant Secretary
| Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. | Entailment |
608_nda-11 | 608_nda-11_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Not mentioned |
608_nda-16 | 608_nda-16_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Not mentioned |
608_nda-15 | 608_nda-15_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Agreement shall not grant Receiving Party any right to Confidential Information. | Entailment |
608_nda-10 | 608_nda-10_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Entailment |
608_nda-2 | 608_nda-2_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Confidential Information shall only include technical information. | Contradiction |
608_nda-1 | 608_nda-1_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| All Confidential Information shall be expressly identified by the Disclosing Party. | Entailment |
608_nda-19 | 608_nda-19_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Some obligations of Agreement may survive termination of Agreement. | Entailment |
608_nda-12 | 608_nda-12_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party may independently develop information similar to Confidential Information. | Entailment |
608_nda-20 | 608_nda-20_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Contradiction |
608_nda-3 | 608_nda-3_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Confidential Information may include verbally conveyed information. | Entailment |
608_nda-18 | 608_nda-18_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Not mentioned |
608_nda-7 | 608_nda-7_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Contradiction |
608_nda-17 | 608_nda-17_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Not mentioned |
608_nda-8 | 608_nda-8_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. | Entailment |
608_nda-13 | 608_nda-13_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party may acquire information similar to Confidential Information from a third party. | Entailment |
608_nda-5 | 608_nda-5_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party may share some Confidential Information with some of Receiving Party's employees. | Not mentioned |
608_nda-4 | 608_nda-4_0 | Exhibit 99.3
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is 1111 Brickell Avenue Miami, FL. 33131. (the "Second Party").
WHEREAS Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential Information"); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans, all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF:
INSIGHTPOS LLC COMPANY / INDIVIDUAL
/s/ Dennis Varghese /s/ Michael Deprad
Signature Date Signature Date
Dennis Varghese Michael Deprad
Printed Name Printed Name
CEO President and COO
Title Title
| Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. | Not mentioned |
609_nda-11 | 609_nda-11_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Not mentioned |
609_nda-16 | 609_nda-16_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Not mentioned |
609_nda-15 | 609_nda-15_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Agreement shall not grant Receiving Party any right to Confidential Information. | Not mentioned |
609_nda-10 | 609_nda-10_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Not mentioned |
609_nda-2 | 609_nda-2_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Confidential Information shall only include technical information. | Not mentioned |
609_nda-1 | 609_nda-1_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| All Confidential Information shall be expressly identified by the Disclosing Party. | Entailment |
609_nda-19 | 609_nda-19_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Some obligations of Agreement may survive termination of Agreement. | Not mentioned |
609_nda-12 | 609_nda-12_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party may independently develop information similar to Confidential Information. | Entailment |
609_nda-20 | 609_nda-20_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Not mentioned |
609_nda-3 | 609_nda-3_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Confidential Information may include verbally conveyed information. | Entailment |
609_nda-18 | 609_nda-18_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Not mentioned |
609_nda-7 | 609_nda-7_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Contradiction |
609_nda-17 | 609_nda-17_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Not mentioned |
609_nda-8 | 609_nda-8_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| 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 |
609_nda-13 | 609_nda-13_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party may acquire information similar to Confidential Information from a third party. | Entailment |
609_nda-5 | 609_nda-5_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party may share some Confidential Information with some of Receiving Party's employees. | Not mentioned |
609_nda-4 | 609_nda-4_0 | Exhibit 10.7
NON-DISCLOSURE AGREEMENT
The undersigned, (hereinafter called “investor”) in consideration for the use of certain information, data and/or know-how related to the so-called “Entec Engine” the rights to which are owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except for technical and economic evaluation internal to investor). investor shall further keep in confidence and not disclose any part of the Information to a third party or parties or use the business plan without the written consent of TTI.
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced to writing. However, this obligation shall not apply to any information, knowledge, data and/or know-how which:
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
(c) investor can demonstrate was received by it from a third party who has not received the same from TTI; or
(d) Is independently developed by or for investor by persons not having access to Information hereunder as shown by written records.
3. Investor shall obligate its employees and the employees of its affiliates who shall have access to any portion of the Information to protect the confidential and proprietary nature of the Information.
Investor
Signature
Name
Title
Date
Address where information should be sent:
| Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. | Entailment |
612_nda-11 | 612_nda-11_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Not mentioned |
612_nda-16 | 612_nda-16_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Not mentioned |
612_nda-15 | 612_nda-15_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Agreement shall not grant Receiving Party any right to Confidential Information. | Not mentioned |
612_nda-10 | 612_nda-10_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Not mentioned |
612_nda-2 | 612_nda-2_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Confidential Information shall only include technical information. | Not mentioned |
612_nda-1 | 612_nda-1_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| All Confidential Information shall be expressly identified by the Disclosing Party. | Not mentioned |
612_nda-19 | 612_nda-19_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Some obligations of Agreement may survive termination of Agreement. | Not mentioned |
612_nda-12 | 612_nda-12_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party may independently develop information similar to Confidential Information. | Not mentioned |
612_nda-20 | 612_nda-20_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Not mentioned |
612_nda-3 | 612_nda-3_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Confidential Information may include verbally conveyed information. | Not mentioned |
612_nda-18 | 612_nda-18_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Not mentioned |
612_nda-7 | 612_nda-7_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Contradiction |
612_nda-17 | 612_nda-17_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Not mentioned |
612_nda-8 | 612_nda-8_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| 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 |
612_nda-13 | 612_nda-13_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party may acquire information similar to Confidential Information from a third party. | Not mentioned |
612_nda-5 | 612_nda-5_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party may share some Confidential Information with some of Receiving Party's employees. | Contradiction |
612_nda-4 | 612_nda-4_0 | NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE AND WORKING AGREEMENT
This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
RECITALS
WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
AGREEMENT
NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
Accepted and Agreed: On this 13 day of February, 2012.
MONNIT CORP. RECEIVING PARTY
By: By: MICHEL ST-PIERRE
Name: Name: Michel St-Pierre
Is: Its:
Exhibit A
Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
Business Source provided by Monnit: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________
| Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. | Not mentioned |
613_nda-11 | 613_nda-11_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. | Entailment |
613_nda-16 | 613_nda-16_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. | Not mentioned |
613_nda-15 | 613_nda-15_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Agreement shall not grant Receiving Party any right to Confidential Information. | Entailment |
613_nda-10 | 613_nda-10_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. | Not mentioned |
613_nda-2 | 613_nda-2_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Confidential Information shall only include technical information. | Contradiction |
613_nda-1 | 613_nda-1_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| All Confidential Information shall be expressly identified by the Disclosing Party. | Not mentioned |
613_nda-19 | 613_nda-19_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Some obligations of Agreement may survive termination of Agreement. | Entailment |
613_nda-12 | 613_nda-12_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Receiving Party may independently develop information similar to Confidential Information. | Not mentioned |
613_nda-20 | 613_nda-20_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. | Not mentioned |
613_nda-3 | 613_nda-3_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Confidential Information may include verbally conveyed information. | Not mentioned |
613_nda-18 | 613_nda-18_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Receiving Party shall not solicit some of Disclosing Party's representatives. | Not mentioned |
613_nda-7 | 613_nda-7_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). | Entailment |
613_nda-17 | 613_nda-17_0 | Exhibit 10.34
NON-DISCLOSURE AGREEMENT
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
(b) is now, or becomes, publicly known through no violation of this Agreement;
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
Schedule A
Parties to the Agreement
The Parties have executed this Agreement as of the dates set forth below.
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
/s/ K.J. Osborne Per (print) K.J. Osborne
SEPTEMBER 18, 2012
ECO-TEK GROUP INC.
Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON,
L4L 7X6
Per: Per (print) ____________________________
| Receiving Party may create a copy of some Confidential Information in some circumstances. | Entailment |