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Exhibit (d)(4)
PIERCING PAGODA, INC.
0000 Xxxxx Xxxxx
Xxxx Xxxxxx Xxx 00000
Xxxxxx Xxxxxx, Xx 00000
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement, made as of March 28, 2000 (the Effective Date), by and
between Piercing Pagoda, Inc., a Delaware corporation (including its affiliates
and their respective successors, transferees and permitted assigns, "PPI"), and
the undersigned (including its affiliates and their respective successors,
transferees and permitted assigns, "Company") in connection with, our
consideration of a possible business transaction (the "Stated Purpose") each
party may disclose certain of its proprietary and confidential information to
the other party in order to facilitate discussion and analyses.
As a condition to the furnishing by one party (in such capacity, the
"Disclosing Party") of such information as the Disclosing Party, in its sole and
absolute discretion, may determine to furnish to the other party (in such
capacity, the "Recipient"), the parties hereto agree to comply with the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of and reliance on the respective
representations, warranties and covenants contained herein and intending to be
legally bound hereby, the parties hereto agree as follows:
1. The Recipient shall take responsible steps to ensure that all
Confidential Information of the Disclosing Party is kept confidential; provided,
however, that such information may be disclosed to those employees or agents of
the Recipient who have a need to know such information, or to such other party
as may be agreed to by the Disclosing Party in writing, only if each such
employee or party is informed by the Recipient of the confidential and
proprietary nature of such information and of the confidentiality undertakings
of the Recipient contained herein. The Recipient shall be responsible for any
breach of this Agreement by its employees or agents.
2. As used herein, "reasonable steps" means the steps that the
Recipient takes to protect its own, similar confidential and proprietary
information, which shall not be less than a reasonable standard of care.
3. As used herein "Confidential Information" means all
proprietary or confidential information of the Disclosing Party, including but
not limited to Confidential Information regarding its products, suppliers,
customers, technology, pricing, business plan, activities or know-how, whether
disclosed directly or indirectly, in writing (marked as Confidential
Information), orally or by drawings or inspection of documents.
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4. However, Confidential Information does not include any of the
foregoing items:
(i) prior to disclosure, is know to the public or becomes
so known through no action of Recipient;
(ii) is required to be disclosed pursuant to applicable
laws, rules or regulations or governmental
requirement or court order (provided, however, that
the Recipient shall promptly advise the Disclosing
Party of its notice of any such requirement or
order);
(iii) is already rightfully in the Recipient's possession
at the time of disclosure, as evidenced by written
records of the Recipient; or
(iv) is received by the Recipient from another person or
entity who is not obligated to the Disclosing party
to keep the same confidential.
5. Neither party shall, without the other party's prior written
consent (a) disclose to any person or entity (other than the persons employed by
either party who are actively and directly participating in the Stated Purpose)
any information about the parties' discussions regarding the Stated Purpose or
the terms, conditions or other facts relating thereto including the fact that
discussions are taking place with respect thereto or the status thereof, or the
fact that the Confidential Information has been made available to either party,
except to the extent that such disclosure is required by applicable laws, rules
or regulations or government requirement or court order (provided, however, that
the Recipient shall promptly advise the Disclosing Party of its notice of any
such requirement or order); or (b) use the Confidential Information for any
purpose other than the Stated Purpose, without limiting the foregoing, the
Recipient shall not trade in the securities of the Disclosing Party while in the
possession of Confidential Information relating to the Disclosing Party.
6. At the request of the Disclosing Party, the Recipient shall
promptly return to the Disclosing Party all Confidential Information of the
Disclosing Party in whatever medium, including any and all copies thereof. Such
return (or, if authorized, destruction of Confidential Information) shall be
confirmed in writing by the Recipient to the Disclosing Party.
7. Each party agrees that it would be impossible or inadequate to
measure and calculate the other party's damages from any breach of the covenants
set forth in this Agreement. Accordingly, the parties agree that if either party
breaches or threatens to breach any of such covenants, the non-breaching party
will have available, in addition to any other right or remedy available, the
right to obtain an injunction from a court of competent jurisdiction restraining
such breach or threatened breach and to specific performance of any such
provision of this Agreement. The parties further agree that no bond or other
security shall be required in obtaining such equitable relief and each party
hereby consents to the issuance of such injunction and to the ordering of
specific performance.
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8. Each party understands and acknowledges that the Disclosing
Party is not making any representation or warranty as to the accuracy or
completeness of any Confidential Information furnished by or on behalf of the
Disclosing Party (except to the extent and only to such effect as shall be
expressly set forth in an executed and delivered definitive agreement between
the parties to effect the Stated Purpose (the "Definitive Agreement")). Neither
the Disclosing Party, its affiliates nor any of their respective officers,
directors, employees or agents shall have any liability to the Recipient or any
of its Representatives relating to or arising from the use of the Confidential
Agreement.
9. Except as set forth in this Agreement, neither PPI nor Company
shall have any liability or obligation of any nature whatsoever to the other
party, nor any obligation to enter into a Definitive Agreement, negotiate to
enter into a Definitive Agreement, or refrain from negotiating similar
agreements with other parties.
10. It is further understood and agreed that this Agreement may
not be amended except by an instrument signed by the party against whom
enforcement is sought. This Agreement shall be governed by an interpreted in
accordance with the laws of the Commonwealth of Pennsylvania, without giving
effect to any conflict of law provisions. This Agreement shall become binding
when any one or more counterparts hereof, individually or taken together, shall
bear the signatures of PPI and Company. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original as against
any party whose signature appears thereon, but all of which together shall
constitute but one and the same instrument.
11. IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed effected as of the date first above written.
PIERCING PAGODA, INC. XXXX CORPORATION
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxx
----------------------------- ----------------------------------
Name: Xxxx Xxxxxxxxx Name: Xxxx X. Xxxx
Title: President and COO Title: Executive Vice President
and Chief Operating Officer
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