EXHIBIT (d)(2)
Non-Disclosure Agreement
This Non-Disclosure Agreement (the "Agreement") is entered into as of the 5th
day of June, 2000, by and between Xxxxxx, Inc. located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Kaplan") and Quest Education Corporation located at
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0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Company").
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In order to pursue a potential strategic alliance, acquisition or other business
relationship, Xxxxxx and Company recognize that there is a need to disclose to
each other certain confidential information of each party to be used solely for
the purpose of evaluating this opportunity.
Each party intends to protect such confidential information of the other party
from unauthorized use and disclosure. In consideration of the disclosures, the
parties hereby agree as follows:
1. This Agreement shall apply to: (a) confidential or proprietary exchanged
material and information (in written, taped or computerized form or format) that
is clearly and prominently marked "Proprietary or "Confidential" or that is not
so marked but, by its nature, is such that it reasonably should be held in
confidence, including, but not limited to, technical, developmental, marketing,
editorial, sales, operating, performance, cost, know-how, computer programming
techniques, and any new or planned programs and services; (b) the existence and
substance of oral and written communications between the parties about the
potential strategic alliance, acquisition or other business relationship; and
(c) the existence of the discussions between Company and Kaplan about the
potential strategic alliance, acquisition or other business relationship.
(Subparagraphs (a), (b) and (c) above hereinafter referred to collectively as
"Confidential Information.")
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2. Each party agrees to hold the other's Confidential Information in confidence
and to use it solely for the purposes contemplated herein and agrees further
that the Confidential Information shall not be used for any other purpose nor
disclosed to any third party without the prior written consent of the other
party. Each party agrees it shall apply the same level of confidential
treatment to the other party's Confidential Information as it does to its own
Confidential Information.
3. The parties may disclose the Confidential Information to their respective
officers, directors, employees, attorneys, subsidiaries and affiliates working
in connection with the purpose for which the Confidential Information is
disclosed but only to the extent necessary to carry out that purpose and subject
to all requirements of confidentiality set forth in this Agreement. The party
receiving the Confidential Information (the "Receiving Party") may also disclose
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Confidential Information to a third party pursuant to paragraph 4(g) below and
subject to the notice provision set forth therein.
4. The obligations under this Agreement shall not apply to information that is
at any time: (a) already known to the Receiving Party at the time it is
disclosed to the Receiving Party; (b) publicly known through no wrongful act of
the Receiving Party; (c) rightfully received from a third party without
restriction on disclosure and without breach of this Agreement; (d)
independently developed by the Receiving Party; (e) approved for release by
written authorization of the party disclosing the Confidential Information (the
"Disclosing Party"); (f) furnished by the Disclosing Party to a third party
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without written restriction on disclosure; or (g) disclosed pursuant to a
requirement of a governmental agency or of law, provided, however, that, to the
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extent viable under the circumstances, the party subject to the disclosure
requirement has notified the Disclosing Party in advance of such disclosure and
the Disclosing Party has had an opportunity to seek a protective order or other
appropriate remedy and the party subject to the disclosure requirement has
reasonably cooperated with such efforts; and provided further, however, that the
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Receiving Party furnish only that portion of the Confidential Information that
is legally required to be so disclosed.
5. The Receiving Party shall not reverse engineer, disassemble, decompile, or
otherwise analyze, restructure and/or copy or in any way recreate in whole or in
part any Confidential Information of the Disclosing Party.
6. If any party provides any of the other parties with written notification of
its request for return of its Confidential Information, then the other
party(ies) shall promptly return (unless destroyed pursuant to the immediately
following sentence) to the notifying party all materials and information
comprising the notifying party's Confidential Information, including any and all
copies, facsimiles and reproductions thereof, and any other material containing
or reflecting any materials or information in the Confidential Information. All
other documents, memoranda, notes and other writings whatsoever prepared by the
Receiving Party or the Receiving Party's representatives based on the materials
or information in the Confidential Information shall be destroyed and such
destruction shall be confirmed in writing to the notifying party.
7. All right, title and interest in and to the Confidential Information and
intellectual property produced based on the Confidential Information is and
shall remain the sole property of the Disclosing Party. Subject only to the
Receiving Party's limited use of the Confidential Information for the purpose
set forth above in this Agreement, the Receiving Party acknowledges and agrees
that nothing in this Agreement shall be construed as granting any rights,
license or otherwise, to any Confidential Information disclosed pursuant to this
Agreement, and the Receiving Party shall not violate any of the Disclosing
Party's intellectual property or other rights in or to the Confidential
Information.
8. The parties hereby acknowledge that disclosure of any Confidential
Information in violation of the terms hereof would cause irreparable harm to the
Disclosing Party. Without prejudice to the rights and remedies otherwise
available, each party is entitled to equitable relief through injunction if the
other party or any of its employees, agents or representatives breaches any
provision of this Agreement.
9. The parties acknowledge that each has endeavored to include in the
Confidential Information information which it believes to be reliable and
relevant for the purpose first set forth above, however each party understands
and acknowledges that neither party nor any of their respective representatives
made or makes any representation or warranty as to the accuracy or completeness
of the Confidential Information. The parties further agree that neither party
nor any of their respective representatives shall have any liability to the
other party or any of such other party's representatives resulting from the use
or contents of the Confidential Information or from any action taken or inaction
occurring in reliance on the
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Confidential Information.
10. This Agreement shall remain in effect for a period of one (1) year from the
effective date hereof.
11. Each party acknowledges and agrees that nothing in this Agreement shall
impose upon any party any obligation to consummate a transaction or to enter
into any discussions or negotiations with respect thereto. Further, each party
understands that the other party may now market or have under development
products and/or services which are competitive with the products or services now
offered or which may be offered in the future by its own company. Subject to
the terms and conditions of this Agreement, discussions and/or communications
between the parties hereto will not serve to impair the right of each party to
develop, make, use, procure and/or market products or services now or in the
future which may be competitive with those offered by the other party nor
require either party to disclose any planning or other information to the other
party, provided none of the foregoing activities violate the terms of this
Agreement.
12. Any notice or other communication made or given by either party in
connection with this Agreement shall be sent via registered or certified mail,
postage prepaid, return receipt requested; by facsimile transmission, with
confirmation of receipt; or by overnight courier service to the other party as
follows:
If to Kaplan: If to Company:
Xxxx Xxxxxxxx Xxxxx Xxxxxx
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Xxxxxx, Inc. Quest Education Corp.
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000 Xxxxxxx Xxxxxx, 00xx Xx. 0000 Xxxxxxx Xxxx #000
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Xxx Xxxx, XX 00000 Xxxxxxx, XX 00000
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Facsimile: 000-000-0000
Copy to: Copy to:
Xxxxxxxx Xxxxxx, Esq. Xxxxxx Xxxxx, Esq.
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General Counsel Xxxxxxxxx Xxxxxxx
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Xxxxxx , Inc. 000 X. Xxxxxxx Xx. #000-X
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888 Seventh Avenue, 23rd Fl. Xxxx Xxxx Xxxxx, XX 00000
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Xxx Xxxx, XX 00000
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Facsimile: 000-000-0000
Any party may by notice as set forth in this paragraph change the address
to which further notices to it shall be mailed.
13. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflict of laws principles.
The parties hereby consent and submit to personal jurisdiction of courts
situated in New York County, New York, and all disputes arising in connection
with the Agreement shall be heard only by a court of competent subject matter
jurisdiction situated in New York County, New York.
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14. This Agreement constitutes the entire understanding between the parties in
connection with the subject matter hereof and supersedes and replaces all prior
discussions, understandings and agreements (oral or written) related thereto.
No amendment or modification of this Agreement shall be valid or binding on the
parties unless made in writing and signed on behalf of each of the parties by
its authorized officer or representative.
15. Neither party may assign or transfer, in whole or in part, any of its
rights, obligations or duties under this Agreement.
16. The failure or delay of either party to enforce at any time any provision
of this Agreement shall not constitute a waiver of such party's right thereafter
to enforce each and every provision of this Agreement. If any provision of this
Agreement is held to be invalid, illegal, void, or unenforceable, then such
provision shall be modified by the proper court or other authority to the extent
necessary and possible to make such provision enforceable, and such modified
provision and all other provisions of this Agreement shall be given effect
separately from the provision or portion thereof determined to be invalid,
illegal, void or unenforceable and shall not be affected thereby.
17. This Agreement may be executed (including by facsimile transmission) with
counterpart signature pages or in several counterparts, each of which shall be
deemed an original and all of which shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be executed
as of the date written above.
QUEST EDUCATION CORPORATION: XXXXXX, INC.:
By: Xxxxx Xxxxxx By: Xxxx Xxxxxxxx
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(signature) (signature)
Name: Xxxxx Xxxxxx Name: Xxxx Xxxxxxxx
Title: V.P. - CFO Title: Senior Vice President
and Chief Financial Officer
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