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Exhibit (2)
CONFIDENTIALITY AGREEMENT
THIS AGREEMENT ("Agreement") is hereby entered into between Softworks, Inc. and
XXX Xxxxxxxxxxx, as of this date last below written and on the following terms
and conditions:
WHEREAS, the parties believe that they would mutually benefit by sharing with
each other certain Confidential Information (as defined herein) and believe it
is in their mutual interest to ensure that all such Confidential Information
will be safeguarded and carefully protected by the recipient.
NOW THEREFORE, for consideration the adequacy of which is hereby acknowledged
and intending to be legally bound, the parties hereby agree as follows:
1. ACKNOWLEDGMENT OF CONFIDENTIALITY. Each party hereby acknowledges that it has
been or may be exposed to confidential and proprietary information of the other
party including, without limitation, the following specific information,
together with some or all of the following categories of material:
(a) Product development or other Technical Information, including
functional and technical specifications, designs, drawings, analysis, research,
processes, computer programs, source code, methods, ideas "know how" and the
like;
(b) Business Information, including sales and marketing research,
materials, plans, accounting customer and financial information, personnel
records and the like, and
(c) Other Valuable Information designated by the owner as confidential
expressly or by the circumstances in which it is provided (collectively,
"Confidential Information").
Confidential Information shall mean information or materials provided by one
party to the other party which are in tangible form and labeled "confidential",
or, if disclosed orally, are identified as being confidential at the time of
disclosure and are followed up within two (2) weeks in a tangible form that is
appropriately labeled. Confidential Information does not include (i) information
already known or independently developed by the recipient, (ii) information in
the public domain through no wrongful act of the recipient, or (ii) information
received by the recipient from a third party who was free to disclose it.
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2. COVENANT NOT TO DISCLOSE. Each party hereby agrees that it shall not use,
commercialize or disclose any Confidential Information to any person or entity,
except to its own employees having a "need to know" (and who are themselves
bound by similar nondisclosure restrictions), and to such other recipients as
the other party may approve in writing; provided, that all such recipients shall
have first executed a confidentiality agreement. Each party shall use at least
the same degree of care in safeguarding the Confidential Information as it uses
in safeguarding its own confidential information, but no less than reasonable
care.
3. PROPRIETARY RIGHTS LEGEND. Recipient shall not alter or remove from any
Confidential Information any proprietary rights legend, copyright notice,
trademark or trade secret legend, or any other xxxx identifying the material as
Confidential Information.
4. REMEDIES FOR BREACH OF CONFIDENTIALITY. Each party hereby acknowledges that
the violations by it of the restrictions imposed hereunder would cause
irreparable harm to the other party and that remedies at law would be inadequate
to redress any actual or threatened violation of this Agreement. Each party
agrees that, in addition to other relief, the foregoing restrictions may be
enforced by temporary or permanent injunctive relief.
5. TERM, TERMINATION. The effective date of this Agreement shall be the date of
the latter signature below. However, termination of this Agreement shall not
relieve a party of its obligations under Section 2 of this Agreement, which
shall continue for a period of three (3) years from the date of the disclosure
under this Agreement. Upon termination, Confidential Information disclosed under
this Agreement shall be returned to the disclosing party or, at disclosing
party's option, may be destroyed.
6. TITLE, OWNERSHIP, LIABILITY. Any right, title and interest in ad to the
Confidential Information shall remain with the respective owners. Nothing in
this Agreement shall be construed as granting any type of license with respect
to any Confidential Information, nor as constituting any representation or
warranty against infringement of any patent or other propriety right.
7. CHOICE OF LAW, FORUM. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW, AND ANY ACTION ARISING OUT OF OR
PERTAINING TO THIS AGREEMENT SHALL BE INITIATED AND
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MAINTAINED IN A COURT OF COMPETENT JURISDICTION IN SUCH STATE.
8. GENERAL PROVISIONS. This document constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all other
communications, whether written or oral. This Agreement is expressly limited to
its terms and my be modified or amended only by a writing signed by an
authorized representative of the party against whom enforcement is sought.
Neither this Agreement nor any rights or obligations hereunder may be
transferred or assigned without the other party's prior written consent and any
attempts to the contrary shall be void. Any provision hereof found by a court of
competent jurisdiction to be illegal or unenforceable shall be automatically
conformed to the minimum requirements of law and all other provisions shall
remain in full force and effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, their successors, legal representative and
permitted assigns. Waiver of any provision hereof in one instance shall not
preclude enforcement thereof on future occasions. Heading are for reference
purposes only and have no substantive effect.
IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have
caused this Agreement to be executed by their duly authorized representatives.
Softworks, Inc. XXX Xxxxxxxxxxx
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx
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Name: Xxxx X. Xxxxx Name: Xxxxxxx Xxxx
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Title: Vice President, Technology Title: Vice President, Business Development
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Date: 11/1/1998 Date: 11/1/1998
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AMENDMENT TO CONFIDENTIALITY AGREEMENT
This Agreement is made as of January 12, 1999 by and between XXX
Xxxxxxxxxxx, a Massachusetts corporation with is principal place of business at
000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx ("EMC") and Softworks, Inc., a
Delaware_ corporation with its principal place of business at 0000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx, ("Softworks").
Whereas, EMC and Softworks now desire to amend certain provisions of
the Confidentiality Agreement, all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, EMC and Softworks hereby
agree as follows:
I. The Confidentiality Agreement is hereby amended by adding the
following provision:
1. EMC will not, until October 14, 1999, without the prior
written consent of the Board of Directors of Softworks, acquire any equity
security of Softworks or Computer Concepts Corporation, a Delaware corporation
with its principal place of business at 00 Xxxxxxx Xxxxx, Xxxxxxx, XX.
II. All other terms and provisions of the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment by their duly authorized representatives.
XXX XXXXXXXXXXX SOFTWORKS, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxx
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Its: Vice President, Corporate Development Its: President and Ceo
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AMENDMENT NO. 2 TO CONFIDENTIALITY AGREEMENT
This Agreement is made as of March 9, 1999 by and between XXX
Xxxxxxxxxxx, a Massachusetts corporation with is principal place of business at
000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx ("EMC") and Softworks, a Delaware
corporation with its principal place of business at 0000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxx, ("Softworks").
Whereas, EMC and Softworks have entered into a Bilateral
Confidentiality Agreement dated as of October 15, 1998, as amended on January
12, 1999 (the "Confidentiality Agreement").
Whereas, EMC and Softworks now desire to further amend certain
provisions of the Confidentiality Agreement, all on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, EMC and Softworks hereby
agree as follows:
I. The Confidentiality Agreement is hereby amended by adding the
following provision:
1. In the event that the potential merger or acquisition
contemplated by this Agreement as of this date (the "Transaction") is not
consummated, for a period of one year from the date of this Amendment,
(a) without prior written consent of Softworks, EMC will not directly solicit
for employment any employee of Softworks, and (b) without prior written consent
of EMC, Softworks will not directly solicit for employment any employee of EMC.
II. All other terms and provisions of the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Amendment by their duly authorized representatives.
XXX XXXXXXXXXXX SOFTWORKS, INC.
By: /s/ Xxxxxxx X. Xxxx By: Xxxx X. Xxxxxx
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Its: Vice President, Corporate Development Its: President and CEO
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AMENDMENT NO. 3 TO CONFIDENTIALITY AGREEMENT
This Agreement is made as of this December, 1999 by and between XXX
Xxxxxxxxxxx, a Massachusetts corporation with is principal place of business at
000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx ("EMC") and Softworks, a Delaware
corporation with its principal place of business at 0000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxx ("SOFTWORKS").
Whereas, EMC and SOFTWORKS have entered into a Bilateral
Confidentiality Agreement dated as of November 1, 1998, as amended by an
Amendment dates as of January 12, 1999 and Amendment No. 2 dated as of March 9,
1999 (the "Confidentiality Agreement").
WHEREAS, EMC and SOFTWORKS now desire to amend certain provisions of
the Confidentiality Agreement, all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, EMC and SOFTWORKS hereby
agree as follows:
I. The Confidentiality Agreement is hereby amended by adding the
following provision:
1. Amendment No. 2 is modified to read: "In the event that the
potential merger or acquisition contemplated by this Agreement as of this date
(the "Transaction") is not consummated, for a period terminating on December 31,
2000, (a) without written prior consent of SOFTWORKS, EMC will not directly
solicit for employment any employee of SOFTWORKS, and (b) without the prior
written consent of EMC, SOFTWORKS will not directly solicit for employment any
employees of EMC.
2. Paragraph 5 is hereby modified to read: "TERM, TERMINATION.
The effective date of this Agreement shall be November 1, 1999. The term of this
Agreement shall be two (2) years from the effective date unless terminated
earlier by written notice of either party. However, termination of this
Agreement shall not relieve a party of its obligations under Section 2 of this
Agreement, which shall continue for a period of three (3) years from the date of
disclosure under this Agreement. Upon termination, Confidential Information
disclosed under this agreement
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shall be returned to the disclosing party or, at disclosing party's option, may
be destroyed.
II. All other terms and provisions of the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment by their duly authorized representatives.
XXX XXXXXXXXXXX SOFTWORKS, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxx
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Its: Vice President, Corporate Development Its: President and Ceo
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