EXHIBIT 10.31
AMERIVISION COMMUNICATIONS, INC.
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
August 31, 2001
Xx. Xxxxx X. Xxxxxx
0000 X.X. 000xx
Xxxxxx, XX 00000
Re: Confidentiality Agreement
Dear Xx. Xxxxxx:
In connection with your appointment, under the terms of that certain
Settlement Agreement, dated August 31, 2001, by and between yourself and
AmeriVision Communications, Inc. (the "COMPANY"), to the position of advisor to
the Company's board of directors, it is expected that you will have access to
information concerning the Company and its affairs which will not have been made
available to the public at the time of its dissemination to board members.
Accordingly, as a condition precedent to: (a) your engagement as such an
advisor, (b) your permitted attendance at meetings of the Company's board of
directors or of any board committee, and (c) your receipt of information,
whether in oral or written form, at any such meeting or in another form of
dissemination by or on behalf of the Company to or among board members (all such
information being hereinafter collectively referred to as the "Confidential
INFORMATION"), the Company has indicated that it must be in receipt of your
assurance that you are willing to treat all such Confidential Information,
whether prepared by or on behalf of the Company and irrespective of the form of
communication by which it is delivered, confidentially and to refrain from
discussing or otherwise releasing the same to anyone other than a member of the
Company's board of directors until such time as it shall have been released to
the public in the form of a press announcement or by way of a filing made with
the United States Securities and Exchange Commission (the "COMMISSION") or you
shall have received permission to do so in written form from the Chairman of the
Company's board of directors. Your execution and delivery of a counterpart copy
of this letter agreement evidences the Company's receipt of such assurance.
For purposes of this letter agreement, Confidential Information shall
not be deemed to include information which (i) is or becomes generally available
to the public other than as a result of a disclosure by you; (ii) was within
your possession prior to its being furnished to you by or on behalf of the
Company pursuant hereto, provided that the source of such information was not
known by you to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the Company or
any other party with respect to such information, and provided further that
within one business day following your receipt of such information, you furnish
to the Company a written statement identifying the source of such previously
received information and the circumstances surrounding your receipt thereof; or
(iii) becomes available to you on a non-confidential basis from a source other
than the Company or any of its representatives, provided that such source
is not bound by a confidentiality agreement with or other contractual, legal
or fiduciary obligation of confidentiality to the Company or any other party
with respect to such information.
Xx. Xxxxx X. Xxxxxx
August 31, 2001
Page 2
Notwithstanding the foregoing, you may make disclosure of Confidential
Information if you have received the written opinion of your outside counsel
that such disclosure must be made by you in order that you not commit a
violation of law. In the event that you are requested or required (by oral
questions, interrogatories, requests for information or documents in legal
proceedings, subpoenas, civil investigative demand or other similar process) to
disclose any of the Confidential Information, you shall provide the Company with
prompt written notice of any such request or requirement so that the Company may
seek a protective order or other appropriate remedy and/or waive compliance with
the provisions of this letter agreement. If, in the absence of a protective
order or other remedy or the receipt of a waiver by the Company, you are
nonetheless, in the written opinion of your counsel, legally compelled to
disclose Confidential Information to any tribunal or else stand liable for
contempt or suffer other censure or penalty, you may, without liability
hereunder, disclose to such tribunal only that portion of the Confidential
Information which such counsel advises you is legally required to be disclosed,
provided that you exercise your best efforts to preserve the confidentiality of
the Confidential Information, including, without limitations, by cooperating
with the Company to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential
Information by such tribunal.
You agree that, in exchange for the Company's willingness to furnish
you with the Confidential Information, you shall not, during the pendency of
your engagement as an advisor to the Company's board of directors, or within the
six month period following its termination, either directly or indirectly,
unless any of the following actions shall have been specifically invited or
authorized in writing by the Company, (a) effect or seek, offer or propose
(whether publicly or otherwise) to effect, or cause or participate in or in any
way assist any other person to effect or seek, offer or propose (whether
publicly or otherwise) to effect, or cause or participate in, (i) any
acquisition or sale, directly or indirectly, of any securities or assets of the
Company or any of its subsidiaries, whether by way of private, public or open
market transactions; (ii) any tender or exchange offer, merger or other business
combination involving the Company or any of its subsidiaries; (iii) any
recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction with respect to the Company or any of its subsidiaries; or (iv) any
"solicitation" of "proxies" (as such terms are used in the Commission's proxy
rules), consents or other authorizations to vote any voting securities of the
Company; (b) form, join or in any way participate in a "group" (as defined under
the Securities Exchange Act of 1934, as amended) or otherwise act, alone or in
concert with others, to seek to control or influence the management, Board of
Directors or policies of the Company; (c) take any action which might force the
Company to make a public announcement regarding any of the types of matters set
forth in (a) above; or (d) enter into any discussions or arrangements with any
third party with respect to any of the foregoing. You also agree that, during
such period, (a) you will not request the Company (or its directors, officers,
employees or agents), directly or indirectly, to amend or waive any provision of
this paragraph (including this sentence), and (b) the Company may instruct its
transfer agent to deny the transfer of any shares of Company stock owned of
record by you.
Xx. Xxxxx X. Xxxxxx
August 31, 2001
Page 3
It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
future exercise thereof or the exercise of any other right, power or privilege
hereunder.
It is further understood and agreed that money damages would not be
sufficient remedy for any breach of this letter agreement by you and that the
Company shall be entitled to equitable relief, including injunction and specific
performance, as a remedy for any such breach. Such remedies shall not be deemed
to be the exclusive remedies for a breach by you of this letter agreement but
shall be in addition to all other remedies at law or equity to the Company. In
the event of litigation relating to this letter agreement, if a court of
competent jurisdiction determines that you have breached this letter agreement,
then you shall be liable and pay to the Company the reasonable legal fees
incurred by the Company in connection with such litigation, including any appeal
therefrom.
This letter agreement is for the benefit of the Company and its
directors, officers, stockholders, affiliates and agents, and shall be governed
by and construed in accordance with the laws of the State of Oklahoma. You also
hereby irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the State of Oklahoma and of the United States of
America located in the State of Oklahoma for any actions, suits or proceedings
arising out of or relating to this letter agreement and the transactions
contemplated hereby (and you agree not to commence any action, suit or
proceeding relating thereto except in such courts), and further agree that
service of any process, summons, notice or document by United States registered
mail to your address set forth above shall be effective service of process for
any action, suit or proceeding brought against you in any such court. You hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any action, suit or proceeding arising out this agreement or the transactions
contemplated hereby, in the courts of the State of Oklahoma or the United States
of America located in the State of Oklahoma and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any court has been brought in an
inconvenient forum.
Please confirm your agreement with the foregoing by signing and
returning one copy of this letter to the undersigned whereupon this letter
agreement shall become a binding agreement between you and the Company as set
forth herein.
Yours truly,
Accepted and agreed to as of AMERIVISION COMMUNICATIONS, INC.
the date first written above:
By:
/s/ XXXXX X. XXXXXX /s/ XXXXXXX X. XXXXX, CHAIRMAN
------------------------------- -----------------------------------
Xxxxx X. Xxxxxx Xxxxxxx X. Xxxxx, Chairman
