MUTUAL NON-DISCLOSURE AGREEMENT
In connection with a potential transaction (“Proposed
Transaction”) between PT Media Nusantara Citra Tbk, an
Indonesian corporation (“Company A”), and
Linktone Ltd., a Cayman Islands corporation (“Company
B”), and in order to allow Company A and Company B to
evaluate the Proposed Transaction, the parties wish to protect
and preserve the confidential
and/or
proprietary nature of certain information and materials of
Company A and Company B that have been or may be disclosed or
made available to the other party or its Representatives (as
defined below) in connection with certain discussions,
negotiations or dealings between the parties relating to the
Proposed Transaction (each party when disclosing information
hereunder being the “Disclosing Party” and when
receiving information hereunder being the “Receiving
Party”).
In consideration of the foregoing and the rights and obligations
set forth herein, both parties hereby agree as of
October 5, 2007 (“Effective Date”):
| 1. | Proprietary Information And Other Definitions. |
1.1 “Proprietary Information”
means any and all information and material disclosed by the
Disclosing Party or its Representatives to the Receiving Party
or its Representatives in connection with the Proposed
Transaction or in the course of the parties’ evaluation of
the Proposed Transaction, together with all communications,
data, reports, analyses, compilations, studies, interpretations,
records, notes, lists, financial statements or other materials
or information prepared by the Receiving Party or its
Representatives that contain or otherwise reflect or are based
upon, in whole or in part, any Proprietary Information of the
Disclosing Party or that reflect the review of, interest in, or
evaluation of all or any portion of the Proposed Transaction or
the Disclosing Party’s business (collectively,
“Derived Information”), whether tangible or
intangible, furnished or prepared in writing, or in oral,
graphic, electronic or any other form or manner and whether
furnished or prepared before, on or after the date hereof,
Proprietary information includes, without limitation, any
(a) trade secret, know-how, idea, invention, process,
technique, algorithm, program (whether in source code or object
code form), hardware, device, design, schematic, drawing,
formula, data, plan, strategy, client and customer lists or
forecasts of the Disclosing Party; and (b) technical,
engineering, manufacturing, product, marketing, servicing,
financial, personnel and other such information or materials of
the Disclosing Party. In addition, Proprietary Information shall
include (x) the fact that discussions or negotiations are
taking place concerning the Proposed Transaction or that Company
A has made or may make an offer to acquire Company B’s
stock or assets or that any Proprietary Information has been
shared between the parties and their respective Representatives
in connection therewith, (y) the proposed terms and
conditions of the Proposed Transaction (including any financial
terms and conditions) and the status thereof, and (z) the
existence, context, and scope of this Agreement.
Proprietary Information shall not include information that:
(i) is or becomes generally available to the public other
than as a result of any disclosure or other action or inaction
by the Receiving Party in breach of this Agreement (including
any disclosure or other action or inaction by the
Representatives of the Receiving Party that would constitute a
breach of this Agreement if undertaken by the Receiving Party
itself); (ii) is or becomes known or available to the
Receiving Party or any of its Representatives on a
non-confidential basis from a source (other than the Disclosing
Party or any of its subsidiaries, affiliates or Representatives)
that, to the best of the knowledge of the Receiving Party, after
reasonable inquiry, is not prohibited from disclosing such
Proprietary Information to the Receiving Party by a contractual,
legal or fiduciary obligation owed to the Disclosing Party or
its Representatives; or (iii) is or was already in the
possession of, or is or becomes known to, the Receiving Party or
any of its Representatives prior to any discussions between the
parties relating to the Proposed Transaction or is or was
independently developed by the Receiving Party or any of its
Representatives without violation of any obligation under this
Agreement.
1.2 “Representatives” means
as to any person, its directors, officers, employees, agents and
advisors (including, without limitation, financial advisors,
banks, attorneys, accountants and their respective
Representatives).
1.3 “person” shall be broadly
interpreted to include, without limitation, any corporation,
partnership, other entity or individual.
| 2. | Non-Disclosure And Limited Use. |
2.1 Non-Disclosure. Without
the prior written consent of the Disclosing Party and except as
otherwise required by applicable law, Receiving Party shall
keep, and shall cause its Representatives to keep, all
Proprietary Information confidential shall not disclose or
reveal, and shall cause its Representatives not to disclose or
reveal, in any manner whatsoever, in whole or in part, any
Proprietary Information to any person, other than to its
Representatives who are actively and directly participating in
its evaluation of the Proposed Transaction or who otherwise need
to know the Proprietary Information for the purpose of
evaluating the Proposed Transaction and who are bound by
obligations of confidentiality with respect to such Proprietary
Information. Each party shall inform all of its respective
Representatives and shall cause its respective Representatives
to inform their Representatives who receive Proprietary
Information hereunder of the confidential nature of such
information and the Proposed Transaction, as well as the terms
of this Agreement. Receiving Party shall not, and shall cause
its Representatives to not, use any Proprietary Information for
the benefit of itself or any other third party or for any
purpose other than to evaluate the Proposed Transaction or in
connection with the consummation of the Proposed Transaction.
Each party shall be responsible for any breach of the terms of
this Agreement by it or its Representatives.
2.2 Degree of Care. The
Receiving Party shall take the same degree of care that it uses
to protect its own confidential and proprietary information of
similar nature and importance (but in no event less than
reasonable care) to protect the confidentiality and avoid the
unauthorized use, disclosure, publication or dissemination of
the Proprietary Information of the Disclosing Party. The
Receiving Party shall not, and shall cause its Representatives
to not, decompile, disassemble or otherwise reverse engineer
(except to the extent expressly permitted by applicable law,
notwithstanding a contractual obligation to the contrary) any
Proprietary Information or any portion thereof, or determine or
attempt to determine any source code, algorithms, methods or
techniques embodied in any Proprietary Information or any
portion thereof. Receiving Party shall not use Proprietary
Information for any purpose or in any manner that would
constitute a violation of any laws or regulations, including
without limitation the export control laws of the United States.
2.3 Designated
Representatives. Neither Company A nor its
Representatives shall initiate or maintain contact with any
officer, director, shareholder, employee or agent of Company B
or its subsidiaries regarding the Proposed Transaction, except
with the consent of Company B. Neither Company B nor its
Representatives shall initiate or maintain contact with any
officer, director, shareholder, employee or agent of Company A
or its subsidiaries regarding the Proposed Transaction, except
with the consent of Company A.
2.4 Compelled Disclosure of Proprietary
Information. In the event that the Receiving
Party or any of its Representatives are requested pursuant to,
or required by, applicable law or regulation (including, without
limitation, any rule, regulation or policy statement of any
national securities exchange, market or automated quotation
system on which any of the Receiving Party’s securities are
listed or quoted) or by legal process to disclose any
Proprietary Information, the Receiving Party shall provide the
Disclosing Party with prompt written notice of such request or
requirement, in order to enable the Disclosing Party (a) to
seek an appropriate protective order or other remedy,
(b) to consult with the Receiving Party with respect to the
Disclosing Party’s taking steps to resist or narrow the
scope of such request or legal process or (c) waive
compliance, in whole or in part, with the terms of this
Agreement. In the event that such protective order or other
remedy is not obtained, or the Disclosing Party waives
compliance, in whole or in part, with the terms of this
Agreement, the Receiving Party or its Representatives, as the
case may be, shall use commercially reasonable efforts to
disclose only that portion of the Proprietary Information which
the Receiving Party is advised by outside legal counsel is
legally required to be disclosed and exercise its commercially
reasonable efforts to cooperate with the Disclosing Party to
obtain confidential treatment for the Proprietary Information so
disclosed.
2.5 Attorney-Client
Privilege. To the extent that any Proprietary
Information may include material subject to the attorney-client
privilege, work product doctrine or any other applicable
privilege concerning pending or threatened legal proceedings or
governmental investigations, the parties understand and agree
that they have a commonality of interest with respect to such
matters and it is their desire, intention and mutual
understanding that the disclosure of such material is not
intended to, and shall not, waive or diminish in any way the
confidentiality of such material or its continued protection
under the attorney-client privilege, work product doctrine or
other applicable privilege and any such Proprietary Information
shall remain entitled to all protection under these privileges,
this Agreement, and under the joint defense doctrine. Nothing in
this
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Agreement obligates any party to reveal material subject to the
attorney-client privilege, work product doctrine or any other
applicable privilege.
2.6 Definitive
Agreement. Until a definitive agreement
regarding the Proposed Transaction has been executed by the
parties hereto, neither party hereto shall be under any legal
obligation or have any liability to the other party of any
nature whatsoever with respect to the Proposed Transaction by
virtue of this Agreement or otherwise (other than with respect
to the confidentiality and other matters set forth herein). Each
party hereto and its Representatives (i) may conduct the
process that may or may not result in the Proposed Transaction
in such manner as such party, in its sole discretion, may
determine (including, without limitation, negotiating and
entering into a definitive agreement with any third party
without notice to the other party) and (ii) reserves the
right to change (in its sole discretion, at any time and without
notice to the other party) the procedures relating to the
parties’ consideration of the Proposed Transaction
(including, without limitation, terminating all further
discussions with the other party). For purposes of this
Agreement, the term “definitive agreement” does not
include an executed letter of intent or any other preliminary
written agreement in principle.
2.7 No Representations or Warranties Regarding
Proprietary Information. Subject to the terms
and conditions of a definitive agreement regarding the Proposed
Transaction and without prejudice thereto, each party
acknowledges that neither the other party nor its
Representatives nor any of the officers, directors, employees,
agents or controlling persons of such Representatives makes any
express or implied representation or warranty as to the
completeness of the Proprietary Information or any use thereof.
Each party hereby expressly disclaims all such warranties,
including any implied warranties of merchantability and fitness
for a particular purpose, non-infringement and accuracy, and any
warranties arising out of course of performance, course of
dealing or usage of trade. The Receiving Party shall not be
entitled to rely on the completeness of any Proprietary
Information, but shall be entitled to rely solely on such
representations and warranties regarding the completeness of the
Proprietary Information as may be made to it in a definitive
agreement relating to the Proposed Transaction, subject to the
terms and conditions of any such agreement, should the
discussions between the parties progress to such a point.
| 3. | No Solicitation. |
3.1 No Solicitation of
Employees. Each party agrees that neither it
nor its Representatives will at any time from the date of this
Agreement until the first anniversary of such date, directly or
indirectly, employ or solicit for employment any employee of the
other party, or any of its affiliates that has first been
introduced by the other party or any of its affiliates to the
other party or any of its affiliates in connection with the
Proposed Transaction or who was otherwise substantively involved
in the discussions of the Proposed Transaction or any other
person who is now employed as an officer of the other party or
any of its affiliates; provided, that the foregoing
restriction shall not be deemed to prohibit either party or its
Representatives from making general public solicitations for
employment for any position or from employing any employee of
the other party or any of its affiliates who responds to such a
general solicitation for employment. Additionally, the above
restriction shall not be deemed to prohibit Company A from
making offers of employment or offering retention packages to
any employees of Company B or any of its affiliates in
connection with the Proposed Transaction.
3.2 No Solicitation of
Customers. Each party acknowledges that the
other party’s customers, joint venture partners and
contractors are valuable business assets, and agrees that from
the date of this Agreement until the first anniversary of such
date, neither party shall (for itself or for any third party),
directly or indirectly, divert or attempt to divert from the
other party any of its respective customers, joint venture
partners or contractors, through solicitation or otherwise.
| 4. | Securities Issues. |
4.1 No Public Disclosure
Required. As of the date hereof, each party
expressly confirms and agrees that it is not required to make
any public disclosure with respect to (a) the Proposed
Transaction (or the terms or conditions or any other facts
relating thereto), (b) any item of Proprietary Information
(or the fact that Proprietary Information has been made
available to such party), or (c) any discussions or
negotiations taking place between the parties with respect to
the Proposed Transaction, whether pursuant to the securities
laws of Indonesia, the U.S. Securities Exchange Act of
1934, as amended (the “Exchange Act”), the
rules and
3
regulations promulgated thereunder, or similar requirements
related to general disclosure. If, after the date of this
Agreement, either party determines that any such disclosure is
required, no such disclosure shall be made unless and until such
party consults with the other party regarding the necessity and
form of any such disclosure, and provides the other party a
reasonable opportunity to review the proposed disclosure and
comment thereon.
4.2 Restrictions on Sales of
Securities. Each party is aware, and will
advise its Representatives who are informed of the matters that
are the subject of this Agreement, of the restrictions imposed
by the United States and other applicable securities laws on the
purchase or sale of securities by any person who has received
material, non-public information from the issuer of such
securities and on the communication of such information to any
other person when it is reasonably foreseeable that such other
person is likely to purchase or sell such securities in reliance
upon such information,
4.3 Standstill. Without the
other party’s prior written consent, a party hereto will
not (and will ensure that its “affiliates” as defined
in
Rule 12b-2
under the Exchange Act will not) for a period of 18 months
from the date of this Agreement: (i) purchase or otherwise
acquire, or offer, seek, propose or agree to acquire, ownership
(including, but not limited to, beneficial ownership as defined
in
Rule 13d-3
under the Exchange Act) of any securities of the other party, or
any direct or indirect rights or options to acquire any such
securities or any securities convertible into such securities
(collectively, “Securities”); (ii) seek or
propose, alone or in concert with others, to control or
influence in any manner the management, Board of Directors or
policies of the other party; (iii) make, or in any way
participate, directly or indirectly, in any
“solicitation” of “proxies” (as such terms
are used in the proxy rules under the Exchange Act and the
regulations thereunder) to vote, or seek to advise or influence
any person with respect to the voting of any voting securities
of the other party or any of its subsidiaries; (iv) form,
join, or in any way participate in a “group” (within
the meaning of Section 13(d)(3) of the Exchange Act) with
respect to the Securities of the other party; (v) make any
proposal or any statement regarding any proposal, whether
written or oral, to the Board of Directors of the other party or
any director or officer of the other party, or otherwise make
any public announcement or proposal whatsoever, with respect to
the Proposed Transaction or any other transaction or proposed
transaction between the parties, any of its respective security
holders or any of its respective affiliates, including, without
limitation, any acquisition, tender or exchange offer, merger,
sale of assets or securities, or other business combination,
unless (a) the other party’s Board of Directors or its
designated Representatives shall have requested in advance the
submission of such proposal (provided, that a party may notify
an executive officer of the other party that it wishes to
receive such a request from the other party’s Board of
Directors or its designated Representatives, so long as such
notification is delivered in a non-public manner only to such an
executive officer and includes only the desire to receive a
request and no indication of the proposal that would be
presented following such request), (b) such proposal is
directed to the other party’s Board of Directors or its
designated Representatives, and (c) any public announcement
with respect to such proposal is approved in advance by the
other party’s Board of Directors, provided, that the
provisions of this clause (v) shall not prohibit a party
from making any such non-public proposal to the other
party’s Board of Directors or any director or executive
officer at any time; (vi) make a request in any form that
the prohibitions of this paragraph be waived or that the other
party take any action which would permit any of the actions
described in this paragraph (provided, that notification
of a party’s desire to receive a request from the other
party’s Board of Directors or one of its designated
Representatives pursuant to clause (v)(a) shall be deemed not to
violate this clause (vi)); or (vii) enter into any
discussions, negotiations, arrangements or understandings with
any third party with respect to any of the foregoing.
| 5. | Ownership. |
All Proprietary Information (including, without limitation, all
copies, extracts and portions thereof) is and shall remain the
sole property of the Disclosing Party, provided, that all
Derived Information shall be the sole property of the Receiving
Party. Receiving Party does not acquire (by license or
otherwise, whether express or implied) any intellectual property
rights or other rights under this Agreement or any disclosure
hereunder, except the limited right to use such Proprietary
Information in accordance with the express provisions of this
Agreement. All rights relating to the Proprietary Information
that are not expressly granted hereunder are reserved and
retained by the Disclosing Party,
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| 6. | Remedies. |
The Receiving Party agrees that, due to the unique nature of the
Proprietary Information, the unauthorized disclosure or use of
the Proprietary Information will cause irreparable harm and
significant injury to the Disclosing Party, the extent of which
will be difficult to ascertain and for which there will be no
adequate remedy at law. Accordingly, the Receiving Party agrees
that the Disclosing Company, in addition to any other available
remedies, shall have the right to an immediate injunction and
other equitable relief enjoining any breach or threatened breach
of this Agreement, without the necessity of posting any bond or
other security. The Receiving Party shall notify the Disclosing
Party in writing immediately upon the Receiving Party’s
becoming aware of any such breach or threatened breach of this
Agreement. Any and all remedies herein expressly conferred upon
a party will be deemed cumulative with and not exclusive of any
other remedy conferred hereby, or by law or equity upon such
party, and the exercise by a party of any one remedy will not
preclude the exercise of any other remedy.
| 7. | Return of Materials. |
If either party hereto shall determine that it does not wish to
proceed with the Proposed Transaction such party shall promptly
advise the other party of that decision. In that case, or in the
event that the Proposed Transaction is not consummated for any
reason, the Receiving Party shall, upon the Disclosing
Party’s written request, promptly deliver to the Disclosing
Party all Proprietary Information, and, at the Disclosing
Party’s sole election, return or destroy (provided that any
such destruction shall be certified by a duly authorized
Representative of the Receiving Party) all copies,
reproductions, summaries, analyses or extracts thereof or based
thereon (whether in hard-copy form or on intangible media, such
as electronic mail or computer files) in the Receiving
Party’s possession or in the possession of any of its
Representatives; provided, that if a legal proceeding has
been instituted to seek disclosure of the Proprietary
Information, such material shall not be destroyed until the
proceeding is settled or a final judgment with respect thereto
has been rendered; and provided, further, that all
documents reflecting the Receiving Party’s final evaluation
of the Proposed Transaction and the reasons for its decision not
to proceed with such a Proposed Transaction (if applicable) will
not be required to be returned or destroyed, however, this
Agreement will continue to apply to any such information on the
terms set forth herein. Notwithstanding the return or
destruction of any Proprietary Information, or documents or
material containing or reflecting any Proprietary Information,
the parties will continue to be bound by their obligations of
confidentiality and other obligations hereunder for the term of
this Agreement (or such other term as may be applicable to the
specific obligation), except as otherwise specifically provided
herein.
| 8. | Miscellaneous. |
8.1 Entire Agreement. This
Agreement constitutes the entire agreement between the parties
concerning the confidentiality of the Proprietary Information in
connection with the Proposed Transaction and related matters and
supersedes all prior or contemporaneous representations,
discussions, proposals, negotiations, conditions, communications
and agreements, whether oral or written, between the parties
relating to the same and all past courses of dealing or industry
custom.
8.2 Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon
Company A and Company B and their respective successors and
permitted assigns.
8.3 Amendments and
Waivers. No amendment, modification or waiver
of any provision of this Agreement shall be effective unless in
writing and signed by duly authorized signatories of both
parties. The waiver by either party of a breach of or a default
under any provision of this Agreement shall not be construed as
a waiver of any subsequent breach of or default under the same
or any other provision of this Agreement, nor shall any delay or
omission on the part of either party to exercise or avail itself
of any right, power, privilege or remedy that it has or may have
hereunder operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other further exercise of
any such right, power, privilege or remedy hereunder.
8.4 Choice of Law. This
Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to conflicts of
laws principles.
8.5 Jurisdiction; Waiver of Jury
Trial. The parties hereto agree that any and
all actions or proceedings seeking to enforce any provision of,
or based on any right arising out of, this Agreement shall be
settled by
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arbitration in Hong Kong in accordance with the Arbitration
Rules of the Hong Kong International Arbitration Centre (the
“Centre”) in force at the date of the dispute,
as amended from time to time. There shall be a panel of three
arbitrators, appointed by the Centre. The place of arbitration
shall be in Hong Kong under the auspices of the Centre. The
award of the arbitral panel shall be final and binding upon the
parties, and the prevailing party may apply to a court of
competent jurisdiction for enforcement of such award. The
language to be used in the arbitral proceedings shall be
English. The arbitration panel shall decide any dispute
submitted by the parties to the arbitration strictly in
accordance with the substantive law of the State of New York and
shall not apply any other substantive law. Process in any action
or proceeding referred to in this section may be served on any
party anywhere in the world.
8.6 Expenses. In the event
of arbitration relating to this Agreement as provided in
Section 8.5, if the arbitration panel determines in a
final, non-appealable order that a party has breached this
Agreement, then such party shall be liable and pay to the
non-breaching party the reasonable costs and expenses (including
reasonable legal fees and expenses) such non-breaching party has
incurred in connection with the enforcement of this Agreement,
including any appeal therefrom.
8.7 Severability. In the
event that any of the provisions of this Agreement shall be held
by a court or other tribunal of competent jurisdiction to be
invalid or unenforceable, the remaining portions hereof shall
remain in full force and effect and such provision shall be
enforced to the maximum extent possible so as to effect the
intent of the parties, and shall in no way be affected, impaired
or invalidated.
8.8 Notices. Any notice or
other communication required or permitted to be delivered under
this Agreement shall be in writing and shall be deemed
effectively given: (i) upon personal delivery to the party
to be notified; (ii) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient,
if not, then on the next business day; (iii) five
(5) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid; or
(iv) three (3) days after deposit with an
internationally recognized express courier, specifying fastest
delivery, with written verification of receipt, to the address
or facsimile number set forth beneath the name of each party
below (or to such other address or facsimile number as such
party may designate by advance written notice to the other party
hereto).
8.9 Counterparts. This
Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement
and all of which, when taken together, will be deemed to
constitute one and the same instrument.
[Signatures
Follow On The Next Page]
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| Company A | Company A | |||
| PT Media Nusantara Citra Tbk | Linktone Ltd. | |||
| Address: | Address: | |||
|
Menara Kebon Sirih
27th floor Xx. Xxxxx Xxxxx Xx. 00-00 Xxxxxxx Xxxxx, Xxxxxxxxx |
00X, Xxxxx Xxxxx Xx. 000 Xx Xxxx Xx Xxxxxxxx 000000 People’s Republic of China |
|||
| By: /s/ Xxxxxxx Xxxxxxx | By: /s/ Xxxxxxx X. Xxxxxxxx | By: /s/ Xxxxxxx Xx | ||
| (signature) | ||||
| Name: Xxxxxxx Xxxxxxx | Name: Xxxxxxx X. Xxxxxxxx | Name: | ||
| (print) | ||||
|
Title: Director
|
Title: Director | Title: |
[Signatures
To Non-Disclosure Agreement]
