EXHIBIT (c)(2)
CONFIDENTIALITY AGREEMENT
1. Parties. This Confidentiality Agreement (the "Agreement"), effective
the 15th day of November, 1999 is between Siemens Energy & Automation, Inc., a
corporation organized under the laws of the State of Delaware with its principal
place of business at 0000 Xxx Xxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 XXX
("SE&A") and Xxxxx Products Co., a company organized under the laws of the state
of Pennsylvania with its principal place of business at 0000 Xxxxxxxxxx Xxxx,
Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000 ("Xxxxx").
2. Purpose of Agreement. The parties intend to further their business
relationship, in accordance with the purpose(s) set forth in Exhibit A. The
discloser, as a party hereto, will disclose certain Confidential information to
recipient, as a party hereto, in connection with such purpose(s). This
Agreement is intended to define the rights and duties of the parties as either
discloser or recipient, with respect to such Confidential Information as may be
so disclosed from one party to the other.
3. Definitions. For purposes of this Agreement, the following definitions
apply:
3.1. "Confidential Information" means any of the discloser's trade
secrets and other competitively sensitive data or information disclosed under
this Agreement, including, without limitation: technical or non-technical data,
formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product and marketing
plans or lists of actual or potential customers or suppliers.
3.2. Exclusions. Notwithstanding the definition of Confidential
Information above, Confidential Information shall not include any information or
data that is:
3.2.1. generally available from public sources or in the
public domain through no fault of the recipient;
3.2.2. received at any time from any third party without
breach of a nondisclosure obligation to the discloser;
3.2.3. shown through proper documentation (1) to have been
developed independently by employees of recipient who had no access to
Confidential Information of the discloser or (2) to have been known to the
recipient without any obligation of confidentiality prior to its disclosure by
the discloser;
3.2.4. required to be disclosed by law, except to the extent
eligible for special treatment under an appropriate protective order; and
recipient shall promptly notify discloser of any requirement to disclose by law
prior to such disclosure to allow discloser to seek an appropriate protective
order; or
3.2.5. approved for disclosure without any confidentiality
obligation by prior written consent of an authorized corporate representative of
the discloser.
Paragraph 4 omitted
5. Restrictions on Confidential Information. The recipient agrees that,
with respect to any such disclosed Confidential Information:
5.1. the Confidential Information shall only be disclosed within the
recipient's organization on a "need-to-know" basis to individuals who have been
apprised of its confidential nature and shall not be further disclosed to any
third party outside of the recipients organization (except for employees of
Siemens AG or of any other company owned or controlled, directly or indirectly,
by Siemens AG, who have a need to know the Confidential Information) without the
discloser's prior written consent. (It is understood and agreed that by
reference to Siemens AG herein, Siemens AG is not submitting itself to the
jurisdiction of the United Sates Courts nor is this reference an admission that
Siemens AG is doing business in the United States);
5.2. the Confidential Information shall be treated at least
according to the same internal security procedures and with the same degree of
care regarding its confidentiality as similar information of the recipient is
treated within the recipient's organization;
5.3. the Confidential information shall remain the property of the
discloser, and the disclosure to the recipient hereunder creates only a limited
license to use such information for purposes related to the furtherance of the
parties' business relationship as anticipated hereunder and as set forth in
Exhibit A and for no other purpose. Upon receipt of a written request from the
discloser for return of the Confidential Information and, in any event, upon
termination of this Agreement, the recipient shall promptly, at its expense,
deliver to the discloser all such Confidential Information (including all copies
and facsimiles thereof, or copies and documents containing such Confidential
Information or portions thereof), together with the recipient's written
certification that no other copies of such Confidential Information have been
made or retained by the recipient or any other person.
5.4. in the event of the loss by the recipient of any Confidential
Information or recipient's awareness of the unauthorized possession, use or
knowledge of any Confidential Information, the recipient shall immediately
notify the discloser in writing of the full details of such loss, unauthorized
possession, use or knowledge.
6. General.
6.1. Governing Law. This Agreement shall be deemed to have been
executed and entered into in the State of Delaware, USA. This Agreement, and its
formation, operation and performance, shall be governed, construed, performed
and enforced in accordance with the substantive laws of the State of Delaware,
USA, without regard to its conflict of law rules.
6.2. Severability. In the event a court of law finds any provision
of this Agreement void and unenforceable, the remaining provisions shall remain
in full force and effect.
6.3. Waiver. Waiver of any breach or violation of this Agreement
shall not constitute a waiver of subsequent breach or violation of the same or
different kind.
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6.4. Entire Agreement. This Agreement and Exhibit A listed above,
which is incorporated herein by reference, constitute the entire agreement
between the parties as to the subject matter hereof and merge all prior
discussions between them. Neither of the parties shall be bound by any
conditions, definitions, warranties, understandings, or representations with
respect to such subject matter other than: (1) as expressly provided herein, or
(2) as duly set forth on or subsequent to the effective date hereof in writing
and signed by a proper and duly authorized representative of the party to be
bound thereby. Further, the terms of this Agreement are in lieu of and override
any contrary terms or conditions, preprinted or otherwise, that may appear on
any form used by (1) Xxxxx to purchase or offer to purchase from SE&A or (2) by
SE&A to acknowledge such a purchase or accept such an offer.
6.5. Notices. All notices permitted or required hereunder by either
of the parties hereto shall be in writing and, unless otherwise specifically
provided, shall be given by sending such notice properly addressed to the other
party's last known address by prepaid registered mail, by a reputable and
established private courier or by telex or facsimile. All such notices shall be
deemed given three (3) days after the date of mailing or at the time of delivery
to the private courier or its agent for transmittal, or upon transmittal of a
telex or facsimile, as the case may be.
6.6. Termination. This Agreement shall continue in full force and
effect until terminated by either party giving thirty (30) days prior written
notice to the other party. Notwithstanding any such termination, the recipient's
obligations under this Agreement shall remain in full force and effect with
respect to Confidential Information for so long afterwards as the information or
data remains a trade secret or for a period of three (3) years after the
effective date of this Agreement, whichever is later.
6.7. Working with Others. This Agreement will not preclude either
party from working with others in any connection, so long as the obligations of
Section 5 are respected.
6.8. No Assignment. The recipient shall not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the discloser, except to a successor in ownership who shall expressly
assume in writing the performance of the terms and conditions of this Agreement.
6.9. Export Controls. The recipient represents and warrants that no
information of the type which may be subject to the International Traffic in
Arms Regulations or the Export Administration Act furnished to it by the
discloser shall be disclosed to any foreign national, firm, or country,
including foreign nationals employed by or associated with the recipient, nor
shall any such information be exported from the United States, except in full
compliance with the Export Administration Act, including the requirements for
obtaining any export license, if applicable. The recipient shall first obtain
the written consent of the discloser prior to submitting any request for
authority to export any such information.
6.10. No Warranty. Confidential Information, including all tangible
media in which Confidential Information is fixed and copies thereof, shall
remain the property of the originating party. Neither this Agreement nor the
disclosure of Confidential Information hereunder shall be construed as granting
any right or license under any invention or patent now
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or hereafter owned or controlled by either party, nor shall any such disclosure
constitute any representation, warranty, assurance, guaranty, or inducement by
the disclosing party to the recipient with respect to the infringement of any
patent or other rights of others. No warranty or representation as to the
accuracy, completeness or quality, including, but not limited to, technical or
scientific quality of any Confidential Information is provided herein. WITHOUT
RESTRICTING THE GENERALITY OF THE FOREGOING, NEITHER PARTY MAKES ANY
REPRESENTATION OR WARRANTIES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
COURSE OF DEALING OR USAGE OF TRADE REGARDING ANY CONFIDENTIAL INFORMATION
DISCLOSED HEREUNDER.
7. Exhibits. The following Exhibit is attached hereto and is incorporated
herein by this reference:
Exhibit A: Business Purpose of Confidential Disclosure
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their duly authorized representatives at the places and on the dates
set forth below.
Siemens Energy & Automation Inc. Malibu Acquisition Corp.
By: /s/ Xx. Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xx. Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Title: Secretary and Treasurer
Strategic Planning & Coop.
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EXHIBIT "A"
Business Purpose of Confidential Disclosure
The Confidential Information to be disclosed under this Confidentiality
Agreement is in furtherance of the business purpose of:
To evaluate cooperation opportunities.
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Exhibit "B"
Nonsolicitation
During the term of this Agreement,
SE&A expressly agree not to initiate or maintain contact with any director,
officer, employee or agent of Xxxxx other than Messrs. Xxxx, Xxxxx and Xxxxx or
any customer or vendor of Xxxxx regarding Xxxxx'x business, operations,
prospects or finances, except with the prior consent of Messrs. Xxxx, Xxxxx and
Xxxxx. SE&A further agree that you will not knowingly: (i) solicit for
employment any employee now employed by Xxxxx or (ii) as a result of or
utilizing any knowledge or information obtained from the Confidential
Information, divert or attempt to divert any business, customer or vendor of
Xxxxx. However, a solicitation for employment shall not be deemed a breach of
this agreement if such solicitation is a general solicitation for employment not
specifically directed toward employees of Xxxxx, and SE&A shall not be prevented
from hiring any person who is responding to any such solicitation or who is no
longer employed by Xxxxx.
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