Exhibit (d)(3)
EXECUTION COPY
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement, made as of this 27th day of September, 1999 (the
"Effective Date") by and between Ben & Jerry's Homemade, Inc., a Vermont
corporation headquartered at 00 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx 00000
("Ben & Jerry's") and Conopco, Inc., with an address at 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000 (collectively, the "Company"), sets forth the terms and
conditions of the confidential disclosure of certain information between the
parties. The party from time to time disclosing Confidential Information, as
herein defined, shall be referred to as the "Discloser" with respect to such
Confidential Information and the party from time to time receiving such
Confidential Information shall be referred to as the "Recipient" with respect to
such Confidential Information. The terms "Ben & Jerry's Confidential
Information" and the "Company's Confidential Information" shall refer to the
Confidential Information disclosed by Ben & Jerry's and the Company as
Disclosers, respectively.
In consideration of the premises set forth below and other valuable
consideration, the receipt of which in hereby acknowledged by each party, Ben &
Jerry's and the Company agree as follows:
1. "Confidential Information" shall mean all information disclosed to
Recipient by Discloser or its agents or employees in any manner, whether orally,
visually or in tangible form (including, without limitation, documents, devices
and computer readable media) and all copies thereof, whether created by
Discloser or Recipient. Tangible materials that disclose or embody Confidential
Information shall be marked, to the extent practicable, by Discloser as
"Confidential," "Proprietary" or the substantial equivalent thereof.
2. Except as expressly permitted herein, Recipient shall not disclose
Confidential Information and shall prevent the disclosure of such information by
Recipient or its affiliates and their respective employees, directors, counsel,
advisors, agents and independent contractors (all of which collectively
"Representatives") by using the same degree of care to keep confidential the
Confidential Information as it uses to keep confidential its own confidential
information. In addition, except as permitted herein, Recipient shall not
disclose the fact that the parties are exchanging Confidential Information and
having discussions. In connection therewith, it is agreed that no public release
or disclosure of any
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contemplated transaction shall be made except by a mutually agreed disclosure
except that each party may make such disclosure if advised by its outside
securities counsel in writing that such disclosure is required; PROVIDED,
HOWEVER, that in such event such party will notify the other party that it
intends, as a preliminary matter, to take such action and the outside securities
counsel of such party shall first discuss the mater with the outside securities
counsel of the other party before any definitive decision is made on the
disclosure.
3. Recipients shall use Confidential Information solely for the purpose
(the "Permitted Purpose") specified at the end of this Agreement.
4. Recipient shall disclose Confidential Information only to those of
its Representatives who have a need to know such information for the Permitted
Purpose.
5. Confidential Information shall not include any information that:
(a) was in Recipient's or its Representative's
possession prior to disclosure by Discloser
hereunder;
(b) was generally known, in the trade or business in
which it is practiced by Recipient or its
Representatives at the time of disclosure to
Recipient or its Representatives hereunder, or
becomes so generally known after such disclosure,
through no act of Recipient or its employees,
agents or independent contractors in violation of
this Agreement;
(c) has come into the possession of Recipient or its
Representatives from a third party who is not, to Recipient's
knowledge, under any obligation to Discloser to maintain the
confidentiality of such information;
(d) was developed by Recipient or its Representatives
independently of and without reference to
Confidential Information.
If a particular portion or aspect of Confidential Information becomes
subject to any of the foregoing exceptions, all other portions or aspects of
such information shall remain subject to all of the provisions of this
Agreement.
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6. Recipient agrees not to reproduce or copy by any means Confidential
Information, except as reasonably required to accomplish such Recipient's
Permitted Purpose. Upon written demand by Discloser at any time, Recipient shall
return promptly to Discloser or destroy, at Recipient's option, all tangible
materials that disclose or embody Confidential Information except that
Recipient's counsel may, upon written notice to Disclosure's counsel, retain a
single copy of Confidential Information in its records solely for use in dispute
resolution or as otherwise required by law. Recipient shall not remove any
proprietary rights legend from, and shall, upon Discloser's reasonable written
request, add an appropriate proprietary legend to, materials disclosing or
embodying Confidential Information.
7. In the event that Recipient is ordered to disclose Discloser's
Confidential Information pursuant to a judicial or governmental request,
requirement or order, Recipient shall promptly notify Discloser and take
reasonable steps at Discloser's expense to assist Discloser in contesting such
request, requirement or order or otherwise protecting Discloser's rights.
8. Discloser understands that Recipient is an ice cream manufacturer
and engaged in distribution (and with arrangements with distributors or
subdistributors) and that planned activities in all such areas that are
independently developed, pursued or acquired by the Recipient may contain ideas
and concepts similar or identical to those contained in Discloser's Confidential
Information. Discloser agrees that entering into this Agreement shall not
preclude Recipient from developing, pursuing or acquiring projects similar to
Discloser's, without obligation to Discloser, provided Recipient does not breach
its obligations to Discloser under this Agreement or use the Confidential
Information to develop or pursue such projects. The parties agree that unless
and until a definitive written agreement between the Company and Ben & Jerry's
has been executed and delivered relating to a specific transaction (which
agreement contains customary conditions, representations, warranties and
covenants for an agreement of that kind), neither party shall be under any
obligation whatsoever with respect to such a transaction by virtue of this or
any written or oral communication with respect to such a transaction by it or
any of its respective Representatives.
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9. The rights and obligations herein shall bind the parties and their
successors and assigns. This Agreement expresses the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes al prior oral or written agreements, commitments and understandings
pertaining to the subject matter hereof. Any modifications of or changes in this
Agreement shall be in writing and signed by both parties. This Agreement shall
remain in full force and effect for two years. Any causes of action accrued on
or before the expiration of such period shall survive the expiration of the
applicable statute of limitations.
10. This Agreement and any controversies, disputes or claims arising
out of or relating to the subject matter of this Agreement shall be governed by
and construed in accordance with the laws of the State of New York and the
parties agree to submit any and all such controversies, disputes, or claims to
the exclusive jurisdiction of the federal courts located in New York, New York.
PERMITTED PURPOSES
A. The "Permitted Purpose" with respect to Confidential Information
disclosed to the Company shall be, to evaluate whether or not to enter
into an agreement with Ben & Jerry's relating to a joint venture, other
cooperative venture or the like between Ben & Jerry's and the Company.
B. The "Permitted Purpose" with respect to Confidential Information
disclosed to Ben & Jerry's shall be: to evaluate whether or not to
enter into an agreement with the Company relating to a joint venture,
other cooperative venture or the like between Ben & Jerry's and the
Company.
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IN WITNESS WHEREOF, each party has caused this Agreement to be executed
and delivered by its authorized officer.
CONOPCO, INC., BEN & JERRY'S HOMEMADE, INC.,
By: /S/MART LAIUS By: /S/ XXXXX X. XXXX
--------------------------- -----------------------------------
Title: VICE PRESIDENT Title: Chief Executive Officer
Date: September 27, 1999 Date: September 27, 1999
