CONFIDENTIAL DISCLOSURE AGREEMENT
This Confidential Disclosure Agreement ("Agreement") is entered into this
15th day of June, 1998 by and between BRC HOLDINGS, INC., a Delaware corporation
hereinafter referred to as ("Discloser") and AFFILIATED COMPUTER SERVICES, INC.,
a Delaware corporation herein after referred to as ("Recipient").
WHEREAS Discloser owns, possesses or controls certain proprietary and
confidential information acquired through the expenditure of time, effort and
money, of a technical nature relating to the Discloser's business, including
proprietary third party information ("Information"); and
WHEREAS Recipient desires to receive, and Discloser is willing to supply,
the Information on the terms and conditions set out herein, solely for the
purpose of preliminary review with potential interest in the formulation of a
business relationship ("Purpose").
NOW THEREFORE in consideration of the premises and mutual covenants and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereto
agree as follows:
1. Discloser shall at its discretion provide Information to Recipient as
is required for the Purpose. Nothing in this Agreement obligates Discloser to
make any particular disclosure of Information, and no representations or
warranties are made hereby with regard to any information disclosed.
2. All right, title and interest in and to the Information shall remain
the exclusive property of Discloser and the Information shall be held in trust
and confidence by Recipient for Discloser. No interest, license or any right
respecting the Information, other than expressly set forth herein, is granted to
Recipient under this Agreement by implication or otherwise.
3. Recipient shall not use the Information in any manner except as
reasonably required for the Purpose.
4. Recipient shall use all reasonable efforts to protect Discloser's
interest in the Information and keep it confidential, using a standard of care
no less than the degree of care that Recipient would be reasonably expected to
employ for its own similar confidential information. In particular, Recipient
shall not directly or indirectly disclose, allow access to, transmit or transfer
the Information to a third party without the Discloser's prior written consent.
Recipient shall disclose the information only to those of its employees, or to
those employees of any consultant of Recipient, who have a need to know the
Information for the Purpose. Recipient shall, prior to disclosing the
Information to such employees and consultants, issue appropriate instructions to
them to satisfy its obligations herein and obtain their agreement to receive and
use the Information on a confidential basis on the same conditions as contained
in this Agreement.
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5. The Information shall not be copied, reproduced in any form, or stored
in a retrieval system or database by Recipient without the prior written consent
of Discloser, except for such copies and storage as may reasonably be required
internally by Recipient for the Purpose. (All copies shall contain the same
proprietary notices of Discloser which may appear on the original Information.)
6. The obligations of the Recipient under Sections 3, 4 and 5 shall not
apply to Information:
(a) which at the time of disclosure is readily available to the trade
or the public; or
(b) which after disclosure becomes readily available to the trade or
the public; other than through a breach of this Agreement; or
(c) which is subsequently lawfully and in good faith obtained by
Recipient from an independent third party without breach of this Agreement;
or
(d) which Recipient can establish, was in its possession prior to the
date of disclosure of such Information by Discloser; or
(e) any Information which the Recipient is by law required to
disclose.
7. Recipient shall, upon request of Discloser, immediately return the
Information and all copies, extracts or summaries thereof in any form whatsoever
under the power or control of Recipient to Discloser, and delete the Information
from all retrieval systems and databases or destroy same as directed by
Discloser.
8. Both parties agree that for a period of two (2) years from the date of
this Agreement, they shall not solicit the employment of any senior management
employees of the other party who were introduced or became known in connection
with the Purpose, provided that this restriction shall not apply to employees
who respond to general solicitation for employment.
9. This Agreement constitutes the entire understanding and agreement
between the Parties with respect to the subject matter of this Agreement, and
supersedes any and all prior understandings, agreements or discussions among the
Parties with respect to the subject matter of this Agreement. There are no
representations, agreements, or arrangements or understandings, oral or written,
between or among the Parties related to the subject matter of this Agreement
which are not fully expressed in this Agreement.
10. This Agreement shall remain in full force and effect for a period of
two (2) years from the date hereof.
11. This Agreement may not be modified or amended except by mutual written
agreement that is executed by the Parties to this Agreement.
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12. This Agreement may not be assigned by Recipient without Discloser's
prior written consent.
13. This Agreement shall be binding upon and inure to the benefit of
Parties hereto, and be enforceable by and against their respective heirs,
administrators, successors, executors and assigns.
14. This Agreement shall be construed in accordance with the laws of the
State of Texas.
15. If any provision of this Agreement or the application thereof to any
person or circumstances shall be held invalid, illegal or unenforceable and such
provision or the application thereof may not be reformed, such illegality or
unenforceability shall extend to that provision solely, and the remaining
provisions of this Agreement shall not be in any way impaired and there shall be
substituted for such invalid, illegal or unenforceable provision, a provision as
like in substance as shall be possible and be legal, valid and enforceable.
16. In the event it becomes necessary for Discloser to file suit or engage
an attorney to enforce this Agreement or any provision contained herein,
Discloser shall be entitled to recover, in addition to all other remedies or
damages, court costs, expenses of litigation and reasonable attorneys fees
incurred in such suit or action.
17. Each of the undersigned states that he or she has carefully read the
foregoing, and knows the contents thereof and has signed the same as his or her
own free act and deed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
DISCLOSER: RECIPIENT:
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BRC HOLDINGS, INC. AFFILIATED COMPUTER SERVICES, INC.
By: /s/XXXXXX X. XXXXXX By: /s/ XXXX X. XXXXXXX
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Title: Executive Vice President and Title: Senior Vice President
Chief Executive Officer
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