CONFIDENTIALITY AND
NONDISCLOSURE AGREEMENT
This Agreement, dated as of January 1, 2000 (the "Effective Date"), is made
between GENROCO, INC., a Wisconsin corporation ("GENROCO"), with offices at 000
Xxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxx 00000, and VIDEOPROPULSION, INC., a Wisconsin
corporation ("VideoPropulsion"), with offices at 000 Xxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxx 00000.
WHEREAS, the video Division was a division as a functional unit thereof
(the "Division"), of GENROCO until the Effective Date when it was spun off as a
separate and independent company, VideoPropulsion (the "Spin-off");
WHEREAS, GENROCO and the Division (and now VideoPropulsion) are the
respective proprietary owners of confidential information concerning technical
and other confidential data (the "Proprietary Information");
WHEREAS, GENROCO and VideoPropulsion consider the Proprietary Information
to be valuable, confidential and not otherwise available for disclosure;
WHEREAS, GENROCO and VideoPropulsion have entered into certain agreements
to govern their relationship after the Spin-off (the "Spin-off Agreements") and
the Spin-off Agreements will require that GENROCO and VideoPropulsion disclose
information to one another which one or the other safeguards as confidential
(the "Spin-off Confidential Information"); and
WHEREAS, prior to the Spin-off certain of GENROCO's and VideoPropulsion's
employees were privy to information regarding GENROCO's and VideoPropulsion's
business operations which one or the other regards as confidential (the "General
Confidential Information").
NOW THEREFORE, in consideration of the promises set forth herein, the
parties do hereby agree as follows:
1. PROPRIETARY INFORMATION
VideoPropulsion and GENROCO agree to treat the Proprietary Information as
confidential and acknowledge that an equivalent of a fiduciary and confidential
relationship between GENROCO and VideoPropulsion is established as a result of
each party providing any Proprietary Information to the other party.
VideoPropulsion and GENROCO agree to disclose the Proprietary Information
of the other only to such employee(s), representatives, advisers, officers,
directors and agents as necessary and only if such persons agree to respect the
fiduciary and confidential relationship between GENROCO and VideoPropulsion.
VideoPropulsion or GENROCO or any of their respective employee(s),
representatives, advisers, officers, directors and agents shall not make any use
or disclosure of the Proprietary Information to any other third party without
the owner's prior written consent.
GENROCO and VideoPropulsion shall safeguard all General Confidential
Information possessed by either of their employee(s) from disclosure to third
parties in the same manner that either GENROCO or VideoPropulsion safeguards its
own information of a similar nature and neither GENROCO nor VideoPropulsion
shall disclose General Confidential Information to any other person without the
prior consent of GENROCO or VideoPropulsion, as applicable. Such consent shall
not be unreasonably withheld.
GENROCO and VideoPropulsion shall restrict use and disclosure of all
General Confidential Information to employee(s), advisers and agents having a
need to know for purposes of facilitating GENROCO's or VideoPropulsion's
business operations.
GENROCO and VideoPropulsion shall, during the period of confidentiality,
restrict use and disclosure of all Spin-off Confidential Information to
employee(s), advisers and agents having a reasonable need to know for the
purpose of facilitating GENROCO's or VideoPropulsion's business operations.
2. NON-CONFIDENTIAL INFORMATION.
The provisions of Section 1 of this Agreement shall not apply to:
(a) information which at the time of disclosure is generally available to
the public in a published work; or
(b) information which after disclosure by either GENROCO or
VideoPropulsion becomes published or generally available to the
public, otherwise than through any act or omission on the part of
GENROCO or VideoPropulsion; or
(c) information which either GENROCO or VideoPropulsion can show was in
its possession at the time of disclosure and which was not acquired
directly or indirectly from the other either prior to, on or after the
Effective Date; or
(d) information rightfully acquired from others who did not obtain it
under pledge of secrecy to either GENROCO or VideoPropulsion; or
(e) information required to be disclosed pursuant to a court, federal
regulatory agency, or state regulatory agency order, or required to be
disclosed pursuant to any federal or state statutory or regulatory
provision provided the party provides the other party with five
business days written notice of such disclosure.
3. REMEDIES.
In an effort to resolve informally and amicably any claim or any
controversy arising out of or relating to the interpretation or performance of
this Confidentiality and Nondisclosure Agreement without resorting to
litigation, a party shall first notify the other of any difference or dispute
hereunder that requires resolution. GENROCO and VideoPropulsion each shall
designate an employee to investigate, discuss and seek to settle the matter
between them. If the two are unable to settle the matter within 30 days after
such notification (or such longer period as may be explicitly agreed upon), the
matter shall be submitted to a senior officer of GENROCO and VideoPropulsion,
respectively, for consideration.
If settlement cannot be reached through the efforts of the senior officers
within an additional 30 days (or such longer period as may be agreed upon), the
parties shall consider arbitration or other alternative means to resolve the
dispute.
If the parties are unable to agree on an alternative dispute resolution
mechanism, either party may initiate legal proceedings to resolve such matter.
In the event of legal proceedings, GENROCO and VideoPropulsion agree that
it is impossible to measure in money the damages that may accrue to a party
hereto by reason of a failure to perform any of the obligations hereunder.
Therefore, in the event of any controversy concerning the rights or obligations
under this Confidentiality Agreement such rights or obligations shall be
enforceable in a court of equity by a decree of specific performance. Such
remedy, however, shall be cumulative and non-exclusive and it shall be in
addition to any other remedy which the parties may have.
4. MISCELLANEOUS.
(a) Governing Law. This Agreement and the transactions contemplated
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hereby shall be construed in accordance with and governed by the internal laws
of the State of Wisconsin.
(b) Entire Agreement. This Agreement, the Contribution Agreement and the
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other Agreements and instruments executed and delivered pursuant to this
Agreement or the Contribution Agreement constitute the entire understanding of
the parties hereto with respect to the subject matter hereof, superseding all
negotiations, prior discussions and prior agreements and understandings relating
to such subject matter; provided, however, that the specific provisions of any
other agreement between the parties executed and delivered by the parties in
connection with the closing under the Contribution Agreement shall not be
superseded by this Agreement and to the extent any such other agreement is in
conflict herewith, such specific agreement shall control.
(c) Parties In Interest. Neither party may assign its rights or delegate
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any of its duties under this Agreement without prior written consent of the
other. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and assigns. Nothing
contained in this Agreement, express or implied, is intended to confer upon any
third party any benefits, rights or remedies.
(d) Effectiveness. This Agreement shall become effective at the Effective
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Date and may be terminated by GENROCO at any time prior thereto without any
liability on GENROCO's part.
(e) Consolidation, Merger, Etc. Involving VideoPropulsion. VideoPropulsion
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shall not consolidate with or merge into any other Person or convey, transfer or
lease all or any substantial portion of its properties and assets to any Person,
and VideoPropulsion shall not permit any Person to consolidate with or merge
into VideoPropulsion or convey, transfer or lease all or any substantial portion
of its properties and assets to VideoPropulsion, unless, in case VideoPropulsion
shall consolidate with or merge into another Person or convey, transfer or lease
all or any substantial portion of its properties and assets to any Person, the
Person formed by such consolidation or into which VideoPropulsion is merged or
the Person which acquires by conveyance or transfer, or which leases all or any
substantial portion of properties and assets of VideoPropulsion shall be a
corporation, partnership or trust shall be organized and validly existing under
the laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by a written agreement, executed and
delivered to GENROCO, in form reasonably satisfactory to GENROCO, all the
liabilities, obligations and expenses to be assumed by VideoPropulsion under
this Agreement and the due and punctual performance or observance of every
agreement and covenant of this Agreement on the part of VideoPropulsion to be
performed or observed.
For purposes of this Section, "Person" shall mean any individual, corpora-
tion, partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
(f) Reformation and Severability. If any provision of this Agreement
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shall be held to be invalid, unenforceable or illegal in any jurisdiction under
any circumstances for any reason, (i) such provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal and preserve the original intent of the parties, or (ii) if such provision
cannot be so reformed, such provision shall be severed from this Agreement.
Such holding shall not affect or impair the validity, enforceability or legality
of such provision in any other jurisdiction or under any other circumstances.
Neither such holding nor such reformation or severance shall affect or impair
the legality, validity or enforceability of any other provisions of this
Agreement to the extent that such other provision is not itself actually in
conflict with any applicable law.
(g) Titles and Headings. All titles and headings have been inserted
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solely for the convenience of the parties and are not intended to be a part of
this Agreement or to affect its meaning or interpretation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers this ----- day of ----------, 2000.
GENROCO, INC.
By: -------------------------------------
Xxxxx Xxxx
Executive Vice President and
Chief Financial Officer
VIDEOPROPULSION, INC.
By: -------------------------------------
Xxxxx Xxxx
Executive Vice President and
Chief Technical Officer
