---------------------
EXHIBIT 10.45
---------------------
June 1, 1999
Internet Media Corporation
0000 Xxxxxxxx Xxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Re: Confidentiality Agreement
Gentlemen:
In connection with the execution of an employment agreement (the
"Employment Agreement") between the undersigned and Internet Media
Corporation (together with affiliates, including, without limitation,
CyberHighway, Inc., the "Company"), the Company will furnish to the
undersigned certain information concerning its business, financial
position, operations, business contacts, assets and liabilities, as well as
certain items of equipment useful in the Wireless Internet access business.
As a condition to such information's being furnished to the undersigned
and as a condition to the undersigned's entering into an employment
agreement with the Company, the undersigned agrees to treat any information
concerning the Company (whether prepared by the Company, its advisors, or
otherwise, and irrespective of the form of communication) which is
furnished to the undersigned now or in the future by or on behalf of the
Company (together with the material described below, herein collectively
referred to as the "Confidential Material") in accordance with the
provisions of this letter agreement, and to take or abstain from taking
certain other actions hereinafter set forth.
The undersigned understands that the term "Confidential Material" also
includes all notes, analysis, compilations, studies, interpretations or
other documents prepared by the Company or its representatives which
contain, reflect or are based upon, in whole or in part, the information
furnished to the undersigned. The term "Confidential Material" does not
include information which (A) is or becomes generally available to the
public other than as a result of a disclosure by the undersigned, or (B)
was lawfully within the undersigned's possession prior to its being
furnished to the undersigned by or on behalf of the Company, provided that
the source of such information was not known by the undersigned to be bound
by a confidentiality agreement with, or other contractual, legal or
fiduciary obligation of confidentiality to, the Company or any other party
with respect to such information, or (C) is disclosed to the undersigned by
a third party, provided that such third party was not known by the
undersigned to be bound by a confidentiality agreement with, or other
contractual, legal or fiduciary obligation of confidentiality to, the
Company or any other party with respect to such information.
The undersigned hereby agrees that he will use the Confidential Material
solely in connection with the undersigned's performance of his duties under
the employment agreement, that the Confidential Material will be kept
confidential and that the undersigned will not disclose any of the
Confidential Material in any manner whatsoever.
The undersigned hereby agrees that he shall not reverse engineer, reverse
assemble or otherwise attempt to recreate or duplicate any model or working
model capable of performing the functions of any portion or all of the
Company's Wireless Internet access system included in the Confidential
Material.
In addition, the undersigned agrees that, without the prior written
consent of the Company, the undersigned will not disclose to any other
person the fact that the Confidential Material has been made available to
the undersigned, that discussions or negotiations are taking place
concerning a possible transaction involving the Company, or any of the
terms, conditions or other facts with respect thereto (including the status
thereof), unless, in the opinion of the undersigned's counsel, such
disclosure must be made by the undersigned in order that the undersigned
not commit a violation of law. The term "person" as used in this letter
agreement shall be broadly interpreted to include the media and any
corporation, partnership, group, individual or other entity, but shall not
include the Securities and Exchange Commission or the Federal Trade
Commission as to any required filing with either such agency.
In the event that the undersigned is requested or required (by oral
questions, interrogatories, requests for information or documents in legal
proceedings, subpoena, civil investigative demand or other similar process)
to disclose any of the Confidential Material, the undersigned will provide
the Company with prompt written notice of any such request or requirement
so that the Company may seek a protective order or other appropriate remedy
and/or waive compliance with the provisions of this letter agreement. If,
in the absence of a protective order or other remedy or the receipt of a
waiver by the Company, the undersigned is, nonetheless, in the opinion of
counsel, legally compelled to disclose Confidential Material, the
undersigned may, without liability hereunder, disclose only that portion of
the Confidential Material specifically required by an order of Court.
Additionally, the undersigned shall make every reasonable effort and take
every reasonable action, including, without limitation, by cooperating with
the Company, to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential
Material.
Upon termination of the Employment Agreement or at any time upon the
request of the Company, the undersigned will promptly deliver to the
Company or certify destruction of, at the Company's direction, all
Confidential Material (and all copies thereof) furnished to the undersigned
by or on behalf of the Company pursuant hereto. All oral Confidential
Material provided to the undersigned shall continue to be held confidential
hereunder. Notwithstanding the return or destruction of the Confidential
Material, the undersigned will continue to be bound by obligations of
confidentiality hereunder.
The undersigned agrees that the Company, without prejudice to any rights
to judicial relief he may otherwise have, shall be entitled to equitable
relief, including injunctive relief and specific performance, in the event
of any breach of the provisions of this letter agreement and that the
undersigned will not oppose the granting of such relief. The undersigned
also agrees that he will not seek and agrees to waive any requirement for
the securing and posting of a bond in connection with the Company's seeking
or obtaining such relief. In the event of litigation relating to this
letter agreement, if a court of competent jurisdiction determines that the
undersigned has breached this letter agreement, then the undersigned will
be liable to pay to the Company the reasonable legal fees incurred in
connection with such litigation, including any appeal therefrom. Also, in
the event a court of competent jurisdiction determines that the undersigned
has not breached this letter agreement, then the Company will be liable to
pay to the undersigned the reasonable legal fees incurred in connection
with such litigation, including any appeal therefrom.
This letter agreement is for the benefit of the Company, and shall be
construed (both as to validity and performance) and enforced in accordance
with, and governed by, the laws of the State of Louisiana applicable to
agreements made and to be performed wholly within such jurisdiction. This
letter agreement shall remain in full force and effect until terminated by
the Company.
Please confirm your agreement with the foregoing by signing and returning
one copy of this letter to the undersigned whereupon this letter agreement
shall become a binding agreement.
Very truly yours,
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
AGREED AND ACCEPTED as
of the date first written above:
INTERNET MEDIA CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
President
