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Exhibit (d) (3)
NONDISCLOSURE AGREEMENT
THE XXXXXXXX COMPANIES, INC., a Delaware corporation ("Xxxxxxxx") and
XXXXXXX RESOURCES CORPORATION, a Delaware corporation ("Recipient"), sometimes
referred to herein individually as a "Party" and collectively as the "Parties",
in consideration of the mutual covenants of this Agreement, hereby agree as
follows:
1. Recipient has requested information regarding Xxxxxxxx for the purpose of
evaluating a possible business combination regarding Xxxxxxxx and Recipient
("Transaction"). Xxxxxxxx may consider such information proprietary under
this Agreement either because it has developed the Information internally,
or because it has received the Information subject to a continuing
obligation to maintain the confidentiality of the Information, or because
of other reasons.
2. The term "Information" as used in this Agreement shall mean information
regarding Xxxxxxxx or any of its subsidiaries or their respective assets or
businesses which is furnished to Recipient by Xxxxxxxx or its
representatives. Xxxxxxxx shall have the right to determine, in its sole
judgment, what information it shall provide to Recipient.
3. With respect to Information disclosed under this Agreement, Recipient
shall:
a. Hold the Information in confidence, exercising a degree of care not
less than the care used by Recipient to protect its own proprietary or
confidential information that it does not wish to disclose.
b. Restrict disclosure of the Information solely to those directors,
officers, employees, and/or agents/consultants with a need to know for
the purpose of evaluating the Transaction and not disclose it to any
other person.
c. Advise those persons to whom the Information was disclosed of their
obligations with respect to the Information. Recipient shall be
responsible for any breach of this Agreement by its representatives.
d. Use the Information only in connection with continuing discussions by
the Parties concerning the Transaction, except as may otherwise be
agreed to by Xxxxxxxx in writing.
4. The Information shall be deemed the property of Xxxxxxxx and, upon request,
Recipient shall return all Information received in tangible form to
Xxxxxxxx, without retaining any copy or duplicate thereof, and shall
destroy any and all written, printed or other material or information
derived from the Information and provide Xxxxxxxx written certification of
such document destruction. If Recipient loses or makes an unauthorized
disclosure of Xxxxxxxx' Information, it shall notify Xxxxxxxx immediately
and use reasonable efforts to retrieve the lost or wrongfully disclosed
Information.
5. Recipient shall have no obligation to preserve the proprietary nature of
any Information which:
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a. was previously known to Recipient free of any obligation to keep it
confidential;
b. is or becomes publicly available by other than unauthorized
disclosure;
c. is received from a third party whose disclosure, to the best of
Recipient's knowledge, does not violate any confidentiality
obligation; or
d. is disclosed pursuant to the requirement or request of a governmental
agency or court of competent jurisdiction to the extent such
disclosure is required by a valid law, regulation or court order, and
sufficient notice is given by Recipient to Xxxxxxxx of any such
requirement or request in order to permit Xxxxxxxx to seek an
appropriate protective order or exemption from such requirement or
request.
6. With respect to any information, including but not limited to Information,
which Xxxxxxxx discloses to Recipient for the purpose of evaluating the
Transaction, it is understood and agreed that Xxxxxxxx does not make any
representations or warranties as to the accuracy, completeness or fitness
for a particular purpose thereof. It is further understood and agreed that
neither Xxxxxxxx nor its representatives shall have any liability or
responsibility to Recipient or to any other person or entity resulting from
the use of any information so furnished or otherwise provided. Neither this
Agreement, nor the transfer of Information hereunder, shall be construed as
granting either expressly, by implication, estoppel, or otherwise, any
license or right to any information or data now or hereafter owned or
controlled by Xxxxxxxx to Recipient and all such Information shall remain
the property of Xxxxxxxx.
7. Neither this Agreement, nor the disclosure of Information under this
Agreement, nor the ongoing discussions and correspondence between the
Parties, shall constitute or imply a commitment or binding obligation
between the Parties or their respective affiliated companies regarding the
Transaction. If, in the future, the Parties elect to enter into a binding
commitment regarding the Transaction, such commitment shall be explicitly
stated in a separate written agreement executed by both Parties, and the
Parties hereby affirm that they do not intend their discussions,
correspondence, and other activities to be construed as forming a contract
regarding the Transaction or any other transaction between them without
execution of such separate written agreement.
8. Recipient acknowledges that it is aware (and that prior to the disclosure
of any Information to any person pursuant to Paragraph 3b such person will
be advised) that the United States securities laws prohibit any person who
has material non-public information about a company from purchasing or
selling securities of such company or from communicating such information
to any other person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell such securities.
9. This Agreement shall benefit and be binding upon the Parties hereto and
their respective successors and assigns.
10. This Agreement shall be governed by and construed in accordance with the
laws of the State of Oklahoma without regard to choice of law principles.
11. This Agreement shall become effective as of the date set forth below
("Effective Date"). The
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obligations of the Parties under this Agreement shall survive and continue
beyond the Effective Date for a period of three (3) years.
12. Recipient acknowledges that in the event of an unauthorized disclosure, the
damages incurred by Xxxxxxxx may be difficult if not impossible to
ascertain, and that Xxxxxxxx may seek injunctive relief as well as monetary
damages against Recipient for breach of this Agreement.
13. This Agreement constitutes the entire understanding between the Parties
with respect to the Information provided hereunder. No amendment or
modification of this Agreement shall be valid or binding on the Parties
unless made in writing and executed on behalf of each Party by its duly
authorized representative.
Each Party represents that it has caused this Agreement to be executed on its
behalf as of the date written below by a representative empowered to bind that
Party with respect to the undertakings and obligations contained herein.
Executed and effective this 6th day of May, 2001
THE XXXXXXXX COMPANIES, INC. XXXXXXX RESOURCES CORPORATION
By: /s/ XXXX X. XXXXXX By: /s/ XXXXXX X. XXXX
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Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxx
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Title: Vice President-Corporate Title: Executive Vice President,
Development General Counsel and Secretary
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