Exhibit 10.18
AMENDED AND RESTATED
MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Amended and Restated Mutual Confidentiality and Non-Disclosure Agreement
("Agreement") is entered into as of March 1, 1998 between TWENTIETH CENTRUTY FOX
HOME ENTERTAINMENT, INC. ("Company") (collectively, "Parties"). This Agreement
amends and restates in its entirety the Mutual Confidentiality and Non-
Disclosure Agreement previously entered into by the Parties. The Parties will
provide each other with Confidential Information as defined below in connection
with one or more possible or actual transactions between the Parties (each a
"Transaction"). As a condition of one of the Parties or its agents or its
representatives furnishing Confidential Information ("Furnishing Party") to the
other of the Parties or its agents or its representatives receiving Confidential
Information ("Receiving Party"), the Receiving Party shall treat the
Confidential Information confidentially as set forth below.
1. "Confidential Information" shall mean all non-public proprietary
information provided by the Furnishing Party to the Receiving Party, whether or
not marked or otherwise specifically designated as confidential. The term
"Confidential Information" does not include information which (i) becomes
generally available to the public other than as a result of a disclosure by the
Receiving Party, (ii) was available to the Receiving Party on a non-confidential
basis prior the Furnishing Party's disclosure to the Receiving Party, or (iii)
becomes available to the Receiving Party on a non-confidential basis from a
source other than the Furnishing Party, provided that such source is, to the
best of the Receiving Party's knowledge, not bound by a confidentiality
agreement with the Furnishing Party or otherwise prohibited from transmitting
the information to the Furnishing Party by a contractual, legal or fiduciary
obligation.
2. It is understood that the Receiving Party may disclose any of the
Confidential Information to the Receiving Party's (and its subsidiaries' and
affiliates') directors, officers, employees, agents, representatives (including
attorneys and financial advisors), and prospective bank or institutional
lenders, (collectively, "Representatives") who require such material in
connection with a possible or actual Transaction (provided that such
Representatives shall be informed by the Receiving Party of the confidential
nature of the Confidential Information and shall agree to act in accordance with
the terms hereof). The Receiving Party agrees that the Confidential Information
of the Furnishing Party will be kept confidential by the Receiving Party and its
Representatives and, except with the specific prior written consent of the
Furnishing Party, or as expressly otherwise permitted by the terms hereof, will
not be disclosed by the Receiving Party or its Representatives. The Parties
further agree that the Receiving Party and its Representatives will not use any
of the Confidential Information for any reason or purpose other than in
connection with a possible or actual Transaction.
3. Company acknowledges and agrees that certain Confidential Information is
extremely competitively sensitive for Fox ("Highly Confidential Information")
and shall therefore be subject to restrictions on disclosure additional to those
applicable to other Confidential Information. Highly Confidential Information
shall include the identity of Fox's actual and potential customers and vendors;
Fox's release schedules and sales trends; the prices and pricing policies of
Fox, its vendors and customers; all customer shipment, point-of-sale and returns
information; Fox's strategic planning information regarding system
implementation (including geographic implementation) and process improvement;
all distribution software used by and software development performed for Fox;
Fox's replenishment schedules and processes, inventory management schedules and
processes; and any other competitively sensitive Confidential Information
designated by Fox from time to time as "Highly Confidential Information".
Company shall limit disclosure of Highly Confidential Information to Company
employees. Company shall be responsible for any breach of this Agreement by any
such
-1-
employee. Company shall not disclose Highly Confidential Information to any of
its consultants, or other vendors, or agents.
4. In the event that the Receiving Party or any of its Representatives are
requested or required by applicable Federal or State law of the United States to
disclose any of the Confidential Information, it is agreed that the Receiving
Party or its Representative, as the case may be, will provide the Furnishing
Party with prompt notice of such request(s) so that it may seek an appropriate
protective order or other appropriate remedy and/or waive compliance by the
Receiving Party or its Representative with the provisions of the Agreement. In
the event that such protective order or other remedy is not obtained, or that
the Furnishing Party grants a waiver hereunder, the Receiving Party or such
Representative of the Receiving Party may furnish that portion (and only that
portion) of the Confidential Information which it is legally compelled to
disclose and will exercise its best efforts to obtain reliable assurance that
confidential treatment will be accorded any Confidential Information so
furnished.
5. Without the prior written consent of Company, (i) neither Fox nor those of
its Representatives who are aware of the Confidential Information of Company
will initiate or cause to be initiated any communications with any employee of
Company concerning the Confidential Information, and (ii) none of Fox's
directors, officers or employees who are aware of the Confidential Information
will, for the two-year period from the date of the Agreement, solicit or cause
to be solicited for employment any employee of Company who is aware of the
Confidential Information of Company.
6. Without the prior written consent of Fox, (i) neither Company nor those of
its Representatives who are aware of the Confidential Information of Fox will
initiate or cause to be initiated any communications with any employee of Fox
concerning the Confidential Information, and (ii) none of Company's directors,
officers or employees who are aware of the Confidential Information will, for
the two-year period from the date of the Agreement, solicit or cause to be
solicited for employment any employee of Fox who is aware of the Confidential
Information of Fox.
7. Upon providing the Receiving Party with a specific list of the Confidential
Information to be returned to the Furnishing Party, the Receiving Party will
promptly deliver to the Furnishing Party or its Representatives, the
Confidential Information listed, together with all copies thereof, in the
possession of the Receiving Party or its Representatives, which was actually
furnished by the Furnishing Party to the Receiving Party.
8. Although the Receiving Party understands that the Furnishing Party has
endeavored to include in the Confidential Information information known to it
which it believes to be relevant to a possible or actual Transaction, the
Receiving Party further understands that neither the Furnishing Party nor its
Representatives make any representation or warranty as to the accuracy or
completeness of the Confidential Information. The Receiving Party agrees that
neither the Furnishing Party nor its Representatives shall have any liability to
Receiving Party or its Representatives resulting from the use of the
Confidential Information by the Receiving Party or its Representatives.
9. The provisions set forth in this Agreement may be modified or waived only
by a separate writing signed by the Parties expressly so modifying or waiving
such provisions.
10. The Receiving Party hereby agrees to indemnify and hold harmless the
Furnishing Party from any damage, loss, cost or liability (including legal fees
and the cost of enforcing this indemnity) arising out of, or resulting from, any
unauthorized use or disclosure by the Receiving Party or its Representatives of
the Confidential Information. The Receiving Party also acknowledges that money
damages would be both incalculable and an insufficient remedy for any breach of
this Agreement by it or its Representatives and that any such breach would cause
the Furnishing Party irreparable harm. Accordingly, the Receiving Party also
-2-
agrees that in the event of any breach of this Agreement, the Furnishing Party,
in addition to any other remedies at law or in equity it may have, shall be
entitled to equitable relief, including injunctive relief and specific
performance.
11. It is understood and agreed that no failure or delay by either party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
12. The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity of enforceability of any other provisions of this
Agreement, which shall remain in full force and effect. The parties hereby
acknowledge and agree that this Agreement and the rights and benefits thereof
shall be assigned by the party to any purchaser of a controlling share of equity
in that party.
13. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
14. The Parties hereby represent and warrant that the undersigned officer is
authorized to execute this Agreement on its behalf.
By signing in the spaces provided below, Fox and Company have agreed to all of
the terms and conditions of this Agreement.
TWENTIETH CENTURY FOX HOME ENTERTAINMENT, INC.
By: /s/ Xxxxx Xxxx
-------------------------
Its: Senior Vice President
Legal and Business Affairs
Twentieth Century Fox Home Entertainment, Inc.
ARTISAN HOME ENTERTAINMENT, INC.
By: /s/ Xxxx Xxxxxx
-------------------------
Its: CEO
-3-
