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Exhibit(c)(5)
CONFIDENTIAL
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is entered into effective as of the 15 day of October, 1999
by and between SER Systeme AG, a German corporation ("SER") and EIS
International, Inc., a Delaware corporation ("EIS").
WHEREAS, in order to enable the parties to evaluate the merits of a
possible business transaction between them (the "Transaction"), each party may
furnish to the other certain information.
NOW, THEREFORE, to induce EIS and SER to disclose such information, the
parties agree as follows:
1. Each party agrees that all information disclosed by a party (the
"Disclosing Party"), including without limitation information acquired by the
other party (the "Receiving Party") from Disclosing Party's employees or upon
inspection of Disclosing Party's property, relating (without limitation) to
Disclosing Party's products, designs, business opportunities, plans (business,
marketing or otherwise), strategies, budgets, finance, customer lists,
contracts, research and development, software programs, trade secrets, know-how,
techniques, inventions, processes, distribution methods, schematics and
personnel disclosed to Disclosing Party by third parties, shall be considered
"Confidential Information".
2. Confidential Information shall not include information which recipient
is able to prove by documentary evidence (a) is now or subsequently becomes
generally known or available by publication, commercial or otherwise, through no
fault of the Receiving Party, (b) was known by the recipient at the time of the
disclosure or was independently developed by the Receiving Party without the use
of any Confidential Information, or (c) must be disclosed pursuant to applicable
legal disclosure requirements or legal process. Confidential Information shall
also not include information that the parties agree in writing may be disclosed
by Receiving Party.
3. The Receiving Party expressly agrees not to use the Confidential
Information for purposes other than those necessary to consider whether to enter
into a Transaction and shall strictly limit its disclosure to such of its
employees, directors and advisors having a need to know such information, which
parties shall be advised that such information is Confidential Information and
subject to the terms of this Agreement. Except as set forth herein, the
Receiving Party shall hold all information received in confidence and not sell,
assign, transfer, release or otherwise disclose the Confidential Information, or
material derived therefrom, to any third party, or to its other employees,
officers, directors, shareholders, agents or consultants. Notwithstanding the
termination of this Agreement for any reason, the Receiving Party shall not use
the Confidential Information for purposes of competing with the Disclosing
Party.
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4. Except as must be disclosed pursuant to applicable legal disclosure
requirements or legal process, neither party nor any of its respective
representatives may, without the prior written consent of the other party,
disclose to any person (other than to its employees, directors and advisors
having a need to know such information) that the parties have exchanged
confidential information, are engaged in negotiations for a Transaction, or the
proposed terms of a Transaction (collectively, the "Negotiations") until such
information has been disclosed by an appropriate legal filing and/or press
release mutually agreed upon by SER and EIS. Each party shall undertake all
necessary and reasonable steps to ensure that the Negotiations remain secret and
confidential.
5. In the event that the Receiving Party or anyone to whom the Receiving
Party transmits the Disclosing Party's Confidential Information pursuant to this
Agreement becomes legally compelled to disclose all or any portion of the
Disclosing Party's Confidential Information or to disclose the existence of
Negotiations, the Receiving Party will provide the Disclosing Party with prompt
notice thereof, so that the Disclosing Party may seek a protective order or
other appropriate remedy. In the event that such protective order or other
remedy is not obtained, the Receiving Party or the recipient of such Disclosing
Party's Confidential Information will furnish only that portion of the
Disclosing Party's Confidential Information or aspect of the Negotiations which
is legally required to be disclosed and the Receiving Party, upon the written
request of the Disclosing Party, will exercise its reasonable efforts to obtain
reliable assurances that confidential treatment will be afforded such portion of
the Disclosing Party's Confidential Information.
6. The Receiving Party shall immediately notify the Disclosing Party in
writing of any unauthorized use or disclosure of the Confidential Information or
the Negotiations, and shall provide a detailed description of the circumstances
of the disclosure and the parties involved, and shall cooperate in any
reasonable efforts to limit or respond to such disclosure.
7. The Receiving Party agrees that all Confidential Information provided
by the Disclosing Party shall remain the property of the Disclosing Party and no
license or other rights in the Confidential Information is granted hereby. The
Receiving Party will not disclose the existence, content and/or substance of any
of the Confidential Information to any third party; nor develop, manufacture,
produce and/or distribute any software product(s) derived from or which
otherwise use any of the Confidential Information. The Disclosing Party agrees
to return (and have any third party to who it supplied the Confidential
Information return) to the Receiving Party, immediately upon notification by the
Disclosing Party in writing, all Confidential Information, including but not
limited to all computer programs, documentation, notes, plans, drawings, and
copies or reproductions thereof, in any form or medium whatsoever, and not to
retain any copies thereof.
8. The Receiving Party will, to the maximum extent permitted by applicable
law, refrain from disassembling or decompiling software, or otherwise attempting
to reverse engineer the design and function of any of the Confidential
Information. The Receiving Party will not remove any copyright notice, trademark
notice and/or other proprietary legend or indication of confidentiality set
forth on or contained in any of the Confidential Information.
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9. The parties agree that any product, plan, strategy or other thing or
concept jointly developed as a result of, or during, the Negotiations, shall be
the joint property of both parties hereto. Neither party shall use, license or
otherwise exploit such jointly developed item(s) without the express prior
written consent of the other party hereto, which consent shall not be
unreasonably withheld or delayed. Notwithstanding the above, any product, plan,
strategy or other thing or concept that a party can prove was known by the
recipient at the time of the development with the other party or was
independently developed shall not be considered a jointly developed item(s).
10. Each party hereby acknowledges that unauthorized disclosure or use of
Confidential Information or the Negotiations could cause irreparable harm and
significant injury, the extent of which may be difficult to ascertain.
Accordingly, each party agrees that each party shall have the right to seek and
obtain immediate injunctive relief from breaches of this Agreement, in addition
to any other rights and remedies each party may have.
11. Although the Disclosing Party shall endeavor to provide the other
party with information relevant for an evaluation of a Transaction, the
Disclosing Party and its advisors have not made, and will not make, any
representation or warranty, express or implied, as to the accuracy or
completeness of the information being provided. Any and all such representations
and warranties shall be only as specifically set forth in a definitive
agreement, if one is hereafter executed and delivered in connection with a
Transaction.
12. Without the written consent of the other party, neither party nor its
affiliates shall not solicit for employment, nor shall it employ or retain or
enter into any contract for the provision of personal services during the two
(2) year period commencing on the date hereof any person who is employed by the
other party as of the date hereof.
13. The Receiving Party agrees to indemnify and hold the Disclosing Party
harmless from and against all claims, losses, liabilities, damages, expenses and
costs (including, without limitation, reasonable fees for attorneys, expert
witnesses and court costs) which result from a breach or threatened breach of
this Agreement by the Receiving Party.
14. (a) This Agreement shall be governed by and interpreted in accordance
with the laws of the Commonwealth of Virginia, excluding its choice of law
rules, and the courts of Fairfax County (if under State law) or the Eastern
District of Virginia (if under Federal law) shall have exclusive jurisdiction
and venue of such actions; (b) the prevailing party, as determined by the court,
in any action between the parties arising from this Agreement shall be entitled
to recover, in addition to any other relief awarded, its costs and expenses
incurred in any such proceeding, including reasonable fees for attorneys, expert
witnesses and court costs; (c) the Receiving Party's rights under this Agreement
may not be assigned to any third party without the Disclosing Party's prior
written consent and any attempted or purported assignment of this Agreement
without such party's consent shall be void; and (d) this Agreement constitutes
the entire agreement and understanding between the parties with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
negotiations, discussions and understandings of the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
written above.
SER SYSTEME AG EIS INTERNATIONAL, INC.
By: /s/ XX. XXXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXXX
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Name: Xx. Xxxxxxx X. Xxxxxx Name: Xxxxx X. XXXXXXX
Title: VORSTAND (EXEC. VP) Title: Pres/CEO
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