CONFIDENTIALITY AGREEMENT December 15, 2010
Exhibit
(e)(10)
December 15,
2010
Verizon Communications Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
You have indicated an interest in evaluating a potential
acquisition (the “Transaction”) of Terremark
Worldwide, Inc. (the “Company”). In evaluating
the Transaction, you have requested certain information
regarding the Company and the Transaction from the Company. As a
condition to your receipt of such information, you agree to
treat any information concerning the Transaction or the Company
which is furnished to you in connection with evaluating the
Transaction (all such information, collectively, the
“Confidential Information”) in accordance with
the provisions of this Confidentiality Agreement (this
“Agreement”) and to take or refrain from taking
certain other actions herein set forth.
1. You hereby agree that the Confidential Information will
be used solely for the purpose of evaluating and implementing
the Transaction and that such information will be kept
confidential by you; provided that any such information
may be disclosed to your officers, directors, employees,
affiliates, accountants, attorneys, financial advisors,
consultants, other agents or representatives and financing
sources (such Persons hereinafter collectively being referred to
as your “Representatives” who need to know such
information for the purpose of evaluating and implementing the
Transaction, have been informed of the confidential nature of
the Confidential Information, and have been advised that such
information is to be kept confidential, and provided,
further, that such officers, directors, employees,
affiliates, accountants, attorneys, financial advisors,
consultants, other agents or representatives and financing
sources shall not be deemed to be your Representatives unless
(but solely to the extent that) you furnish Confidential
Information to them. You agree you will be liable for any
breaches of the terms of this Agreement by such Representatives.
You and the Company also each agree, on behalf of itself, its
affiliates and its and their respective Representatives, that it
shall not, without the prior written consent of the other party
hereto, disclose to any Person the fact that Confidential
Information has been made available to you, that discussions or
negotiations have taken place or are taking place concerning a
possible Transaction or any of the terms, conditions or other
facts with respect to any such possible Transaction, including
the status thereof.
2. The term “Confidential Information” does not
include any information which (a) at the time of disclosure
or thereafter is generally available to or known by the public
(other than as a result of its disclosure by you or your
Representatives in breach of this Agreement), (b) was
available to you or your Representatives on a non-confidential
basis prior to disclosure by the Company, (c) becomes
available to you or your Representatives on a non-confidential
basis from a Person who is not known by you or your
Representatives (as applicable) to be bound by a confidentiality
agreement with the Company, or is not otherwise prohibited from
transmitting the information to you or your Representatives (as
applicable), or (d) is or was independently developed by
you or your Representatives without reference to, incorporation
of, or other use of any Confidential Information.
3. Given the nature of the Confidential Information and our
current discussions, the Company may be irreparably damaged by
any unauthorized disclosure of any Confidential Information and
you and the Company may be irreparably damaged by any
unauthorized disclosure of our discussions or by any breach of
this Agreement by you, the Company or the Representatives of you
and the Company. Without prejudice to other rights and remedies
otherwise available, you and the Company therefore agree that
the other party hereto shall be entitled to seek equitable
relief, including an injunction or specific performance, in the
event of any breach of the provisions of this Agreement by the
other party hereto or the Representatives of the other party
hereto.
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4. In the event you or any of your Representatives become
legally compelled (by deposition, interrogatory, request for
documents, subpoena, civil investigation, demand, order or
similar process) to disclose any of the contents of the
Confidential Information, or you or the Company or any of the
respective Representatives of you or the Company become so
legally compelled to disclose either the fact that discussions
or negotiations are taking place concerning a possible
Transaction between the Company and you, or any of the terms,
conditions or other facts with respect to any such possible
Transaction, including the status thereof, the Company and you
each agrees that each party and its respective Representatives
may do so without liability, but each party hereto also agrees
(i) to promptly notify the other party prior to any such
disclosure to the extent practicable and legally permissible and
(ii) to cooperate with the other party in any attempt it
may make to obtain a protective order or other appropriate
assurance that confidential treatment will be afforded the
Confidential Information.
5. The Company may elect at any time to terminate further
access by you to the Confidential Information. Following any
written request by the Company, you agree, at the Company’s
election, to either promptly redeliver to the Company or destroy
all written Confidential Information in your possession or your
Representatives’ possession, and you and your
Representatives will not retain any copies, extracts or other
reproductions in whole or in part of such written material. You
further agree that all documents, memoranda, notes and other
writings whatsoever prepared by you or your Representatives
based on the Confidential Information shall be destroyed, and
you shall delete, to the extent reasonably practicable, all
Confidential Information from any computer or other electronic
device. Notwithstanding the foregoing, no such destruction or
deletion shall be required where prohibited by law, regulation,
regulatory process or proceeding, or stock exchange regulation,
or where the Confidential Information is part of the record of
proceedings of your Board of Directors; provided, that
any such Confidential Information so retained shall continue to
be held confidential in accordance with the terms of this
Agreement.
6. You and the Company also agree that, unless and until a
binding agreement is entered into between the Company and you
with respect to the Transaction, neither the Company nor you
will be under any legal obligation of any kind whatsoever with
respect to the Transaction by virtue of this or any other
written or oral expression, except with respect to the matters
specifically agreed to herein. Nothing contained in any
discussions between you and the Company or in any Confidential
Information shall be deemed to constitute a representation or
warranty. Except for the matters set forth in this Agreement or
in any such binding agreement, neither party shall be entitled
to rely on any statement, promise, agreement or understanding,
whether oral or written, any custom, usage of trade, course of
dealing or conduct.
7. You agree that certain Confidential Information may be
deemed material non-public information under applicable
securities laws. Without limitation of the other restrictions on
use or transfer of Confidential Information described herein,
you agree that while such information remains non-public, you
will not engage, and will direct your Representatives not to
engage, in any transactions in the securities of the Company in
a manner which would constitute a violation of such laws.
8. From the date of this Agreement until the earlier to
occur of (a) 11:59 p.m. (New York time) on
February 3, 2011 and (b) the execution of a definitive
agreement between the Company and you relating to a Transaction,
except for discussions with you regarding the Transaction, the
Company and its affiliates shall not, and the Company shall
cause its Representatives not to, directly or indirectly,
(w) solicit or knowingly encourage inquiries or proposals
with respect to any offer or proposal to (i) sell, issue or
otherwise transfer any equity securities (or securities
convertible or exchangeable for equity securities) of the
Company or any of its subsidiaries (except in accordance with
the terms of convertible securities outstanding on the date
hereof and pursuant to employment arrangements entered into in
the ordinary course from time to time), (ii) sell or
otherwise transfer any material assets of the Company or any of
its subsidiaries or (iii) effect any recapitalization,
refinancing, restructuring, merger, consolidation or other
business combination involving the Company or any of its
subsidiaries (any of the foregoing hereinafter referred to as an
“Alternative Proposal”), (x) solicit or
encourage the initiation of (including by way of furnishing
information) any inquiries or proposals regarding any
Alternative Proposal, or (y) have any discussions with or
provide any non-public information or data to any third party
that would encourage, facilitate or further any effort or
attempt to make or implement an Alternative Proposal.
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9. Upon the terms and subject to the conditions of a
definitive agreement, if any, with respect to the Transaction
and without prejudice thereto, each party hereto acknowledges
and agrees that none of the other party or any of such other
party’s respective Representatives and none of the
respective officers, directors, partners, shareholders, members,
employees, agents or persons in control of such other
party’s Representatives makes any express or implied
representation or warranty to such party, such party’s
Representatives or to any other person as to the accuracy or
completeness of the Confidential Information furnished by or on
behalf of such party, and each party hereto hereby further
acknowledges and agrees that none of such persons shall have any
liability to the other party or any of such other party’s
Representatives relating to or arising from or in connection
with such other party’s use or the use by such other
party’s Representatives of any Confidential Information
furnished by or on behalf of such party to such other party or
its respective Representatives or for any inaccuracies contained
therein or any omissions therefrom. Each party hereto also
acknowledges and agrees that it is not entitled to rely on the
accuracy or completeness of any Confidential Information
furnished to it or its Representatives by or on behalf of the
other party and that such party shall be entitled to rely solely
on such representations and warranties as may be made to it and
contained expressly in any definitive agreement with respect to
the Transaction, to the extent in accordance with the terms and
subject to the conditions set forth in any such definitive
agreement.
10. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without
regard to conflicts-of-law principles. Each party hereto
irrevocably and unconditionally (a) consents to submit to
the jurisdiction of the courts of the State of New York and of
the United States of America located in the State of New York
for any action, suit or proceeding arising out of or relating to
this agreement (and irrevocably and unconditionally agrees not
to commence any such action, suit, or proceeding except in such
courts), (b) waives any objection to the laying of venue of
any such action, suit or proceeding in any such courts and
(c) waives and agrees not to plead or claim that any such
action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
11. The provisions of this Agreement shall be binding
solely upon and inure to the benefit of the parties hereto and
their respective successors and assigns. The Company agrees that
you may assign all rights, powers, privileges, and obligations
under this Agreement with respect to any or all of the proposed
Transaction to any of your affiliates.
12. This Agreement represents the entire understanding and
agreement of the parties hereto and may be modified only by a
separate written agreement executed by you and the Company
expressly modifying this Agreement. This Agreement supersedes
and cancels any and all prior agreements between the parties
hereto, express or implied, relating to the Transaction;
provided that the Mutual Non-Disclosure Agreement dated as of
November 13, 2009 between the parties hereto shall remain
in full force and effect with respect to the matters
contemplated thereby.
13. For purposes of this Agreement,
“Person” shall be broadly interpreted to
include any individual, corporation, company, partnership,
limited liability company, trust or other group or entity
(including any court, government or agency, commission, board or
authority thereof, federal, state or local, domestic, foreign or
multinational).
14. This Agreement shall terminate upon the earlier to
occur of (a) the closing of the Transaction contemplated by
this Agreement, and (b) one (1) year after the date
hereof.
15. This Agreement may be executed in counterparts, each of
which when so executed shall be deemed an original, but such
counterparts shall together constitute one and the same
Agreement.
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Please confirm your agreement with the foregoing by signing and
returning to the undersigned a duplicate copy of this Agreement.
Sincerely,
TERREMARK WORLDWIDE, INC.
| By: |
/s/ Xxxxxx
X. Xxxxxx
|
Name: Xxxxxx X. Xxxxxx
| Title: | President and Chief |
Executive Officer
ACCEPTED AS OF THE DATE FIRST
WRITTEN ABOVE:
VERIZON COMMUNICATIONS INC.
| By: |
/s/ Xxxx
X. Xxxxxxxxx
|
Name: Xxxx X. Xxxxxxxxx
| Title: | Executive Vice President |
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