NONDISCLOSURE AGREEMENT
Exhibit (e)(4)
THIS NONDISCLOSURE AGREEMENT (this “Agreement”), dated
as of March 28, 2007, is made by and between Motive, Inc.,
a Delaware corporation, with a principal place of business at
00000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx 0, Xxxxxx, Xxxxx 00000 XXX
(hereinafter “Motive”) and Alcatel-Lucent, a a Societe
Anonyme organized under the laws of the Republic of France, with
a principal office at 00 xxx Xx Xxxxxx, 00000 Xxxxx, Xxxxxx
(hereinafter “Alcatel Lucent”).
RECITALS
WHEREAS, Motive and Alcatel Lucent (jointly, the
“Parties” and each individually, a “Party”)
desire to enter into discussions related to a possible business
combination (the “Possible Transaction”), and these
discussions will of necessity involve the disclosure by one
Party (the “Disclosing Party”) to the other Party (the
“Receiving Party”) of confidential and proprietary
information; and
WHEREAS, the Parties desire to (i) keep their discussions
and the nature and scope thereof confidential; and
(ii) reach an understanding with respect to the disclosure
of such information and the confidentiality of the discussions
in general;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. The
following terms shall have the meanings set forth below:
1.1. “Confidential Information” includes
all non-public information, whether written or oral (whatever
the form or storage medium), or gathered by inspection, or
acquired, directly or indirectly, by one Party or its
Representatives from the other Party or its Representatives in
connection with a Possible Transaction, regardless of whether
such information is specifically identified as
“confidential.” The term “Confidential
Information” does not include information which
(i) was known to the Receiving Party or its Representatives
or was in its or any of its Representatives’ possession
prior to the date of its disclosure pursuant to this Agreement
(except for information which was previously disclosed to the
Receiving Party or its Representatives under an obligation of
confidentiality to the Disclosing Party or its Representatives
and which continues to remain subject to those confidentiality
obligations); (ii) is or becomes generally available to the
public other than through an unauthorized disclosure by the
Receiving Party or its Representatives in violation of this
Agreement; (iii) becomes available to the Receiving Party
or its Representatives from a source other than the Disclosing
Party or its Representatives, provided that such source is not,
to the Receiving Party’s knowledge, prohibited from
transmitting such Confidential Information to the Receiving
Party by a contractual, legal or fiduciary obligation to the
Disclosing Party or its Representatives; or (iv) is
independently developed by the Receiving Party or any of its
Representatives as demonstrated by the written records of such
Party or Representatives which have not had access to the other
Party’s Confidential Information.
1.2. “Person”shall be broadly interpreted
to include, without limitation, any individual, corporation,
company, group, partnership, limited liability company or other
entity.
1.3. “Representatives” means a
Party’s affiliates and its and their respective directors,
officers, employees, agents or representatives, including,
without limitation, its and their respective attorneys,
accountants, consultants and financial advisors.
1.4. “Residuals” means technological
information and all ideas, concepts, and understandings related
thereto that would be inadvertently retained in non-tangible
form in the unaided memory of an ordinary Person unless such
Person intentionally memorized such technological information,
ideas, concepts and understandings for the purpose of retaining
and subsequently using or disclosing it for purposes other than
as authorized by this Agreement.
2. Confidential Information.
2.1. Each Party recognizes and acknowledges the value of
the Confidential Information and the damage that could result if
the Confidential Information were used or disclosed except as
authorized by this Agreement. Except as otherwise required by
applicable law or regulatory authority, each Party agrees to
keep confidential and not disclose, and cause its
Representatives to keep confidential and not disclose, to any
Person the Confidential Information it or its Representatives
receives from the other Party or its Representatives without the
Disclosing Party’s prior written consent, except as
provided below. The Receiving Party or its Representatives shall
be entitled to disclose the Confidential Information of the
Disclosing Party and provide copies of the same, without the
Disclosing Party’s prior written consent, to those
Representatives of the Receiving Party who need to know such
Confidential Information solely for the purpose of evaluating
the Possible Transaction. The Receiving Party shall be
responsible for any violations of any provision of this
Agreement caused by any of the Receiving Party’s
Representatives.
2.2. The Receiving Party acknowledges that the Evaluation
Material is being furnished to the Receiving Party in
consideration of the Receiving Party’s agreement that it
will not propose to the Disclosing Party or any other person any
transaction between the Receiving Party and the Disclosing Party
and/or its
security holders or involving any of its securities or security
holders unless the Disclosing Party shall have requested in
writing that the Receiving Party make such a proposal, and that
the Receiving Party will not acquire, or assist, advise or
encourage any other persons in acquiring, directly or
indirectly, control of the Disclosing Party or any of the
Disclosing Party’s securities, businesses or assets for a
period of two (2) years from the date of this Agreement
unless the Disclosing Party shall have consented in advance in
writing to any such action.
2.3 The Receiving Party agrees that it will not use the
Evaluation Material in any way directly or indirectly
detrimental to the Disclosing Party. In particular, the
Receiving Party agrees that it and its Representatives will not
knowingly, as a result of knowledge or information obtained from
the Evaluation Material or otherwise in connection with the
Possible Transaction, directly or indirectly: (i) solicit,
divert or attempt to solicit or divert any business or customer
of the Disclosing Party or any of its affiliates; nor
(ii) solicit, the employment of, employ, divert or attempt
any of the foregoing with respect to, any employee of the
Disclosing Party or any of its affiliates
3. Use of Confidential Information for Evaluation;
Disclosure. Neither the Receiving Party nor
any of its Representatives shall use the Confidential
Information for any purpose, other than evaluation of the
Possible Transaction. Each Party hereby acknowledges that it is
aware, and that it will advise its Representatives who are
informed as to the matters which are the subject of this
Agreement, that United States securities laws prohibit any
person who has received from an issuer material, non-public
information concerning the matters which are the subject of this
Agreement from purchasing or selling securities of such issuer
or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities. The
restrictions on disclosure and use of Confidential Information
in this Agreement shall extend until the earlier of (a) the
expiration of the period set forth in Section 14 of this
Agreement, (b) the Parties’ entry into a separate,
subsequent agreement that contains confidentiality and
non-disclosure provisions that supersede this Agreement with
respect to the Confidential Information, and (c) such time,
if ever, the Confidential Information becomes publicly available
(otherwise than through a breach of this Agreement). Except to
the extent the Receiving Party’s legal counsel advises the
Receiving Party that disclosure is required by applicable law or
regulatory authority, without the prior written consent of the
Disclosing Party, the Receiving Party will not, and will direct
the Receiving Party’s Representatives not to, disclose to
any other Person that such Confidential Information has been
requested or made available, that discussions or negotiations
are taking place concerning the Possible Transaction, or any of
the terms, conditions or other facts with respect to the
Possible Transaction, including the status thereof, or the term
of this Agreement.
4. Requested Disclosure of Confidentialdential
Information.
4.1 In the event that a Receiving Party or anyone to whom
the Receiving Party transmits such Confidential Information
pursuant to this Agreement is legally requested (by oral
questions, interrogatories, request for information or
documents, subpoena, civil investigative demand or similar
process) or otherwise required to disclose any Confidential
Information of a Disclosing Party, the Receiving Party will,
except as prohibited by law, provide the Disclosing Party with
written notice of same, prior to disclosing such Confidential
Information, so that the Disclosing Party may seek an
appropriate protective order
and/or waive
compliance with this Agreement. If, in the absence of a
protective order or the receipt of a waiver hereunder, the
Receiving Party is nonetheless legally compelled to disclose
such Confidential Information, it may, without liability
hereunder, furnish only that portion of such Confidential
Information that is legally required and will exercise
reasonable commercial efforts to obtain assurance that
confidential treatment will be accorded such Confidential
Information.
4.2 If either Party, in its sole judgment, determines that
it is required by applicable securities laws to make disclosures
or public statements prohibited by Paragraph 3, the Party
may make such disclosures or public statements as may be
required by securities laws. The Disclosing Party shall provide
the other Party with prior notice to the extent practicable.
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5. No License; Use. Neither
the execution of this Agreement, nor the furnishing of any
materials or Confidential Information hereunder, shall be
construed as granting or conferring any rights to the other
Party, either expressly or by implication, estoppel or
otherwise, any license under any trademark, patent, copyright,
technological information or other information, or other
intellectual property; provided, however, that a Person who has
used or seen materials or information pursuant to this Agreement
shall not be precluded from using or disclosing Residuals.
Nothing in this Agreement shall be construed to limit the
Receiving Party’s right to independently develop
information, materials, technology, or other products or
services for itself or for others which may compete with the
Disclosing Party so long as no disclosures or use in violation
of this Agreement has been made by the Receiving Party.
Furthermore, nothing herein shall be construed as a
representation or inference by Receiving Party that it has not
already developed, or may be in the process of developing, or
may have already rightfully received or acquired from third
parties, information similar to that Confidential Information to
be disclosed by Disclosing Party hereunder.
6. Ownership of Confidential
Information. The Confidential information
shall remain the property of the Disclosing Party, and the
Disclosing Party may demand the return thereof at any time by
written notice to the Receiving Party. Upon receipt of such
notice, the Receiving Party shall (a) return to the
Disclosing Party all Confidential Information received by the
Receiving Party or its Representatives from the Disclosing Party
or its Representatives; and (b) destroy and cause each of
its Representatives to destroy each and every copy of any
documents, drawings, data, memoranda and other written Materials
together with any tapes and computer stored information or the
parts thereof extracted from, embodying, containing or relating
to such other party’s Confidential Information;
provided, however, that one (1) copy of the
Confidential Information may be retained by the Receiving
Party’s outside counsel on a confidential basis for
purposes of verification. Any destruction pursuant to
(b) in the preceding sentence shall be promptly confirmed
in writing.
7. No Warranties. The
Receiving Party acknowledges that neither the Disclosing Party
nor its Representatives makes any representation or warranty
hereunder as to the accuracy or completeness of any Confidential
Information of the Disclosing Party or other information
disclosed pursuant to this Agreement, each Party agrees to
assume full responsibility for all conclusions it derives from
the Confidential Information. The Receiving Party agrees that
neither the Disclosing Party nor its Representatives shall have
any liability hereunder to the Receiving Party or to any of the
Receiving Party’s Representatives on any basis (including,
without limitation, in contract, tort, under federal or state
securities laws, or otherwise) as a result of the use of such
Confidential Information by the Receiving Party and the
Receiving Party’s Representatives, it being understood that
only those particular representations and warranties that may be
made to the Receiving Party by the Disclosing Party or its
affiliates in a definitive transaction agreement, when, as and
if it is executed, and subject to such limitations and
restrictions as may be specified in such definitive agreement,
shall have any legal effect. Each Party and its respective
Representatives hereby expressly disclaim any and all liability
that may be based, in whole or in part, on errors or omissions
in any Confidential Information furnished hereunder. Unless and
until a definitive agreement (the “Definitive
Agreement”) with respect to a Possible Transaction has been
executed and delivered by the Parties hereto, neither Party will
be under any legal Obligation of any kind whatsoever to proceed
with a Possible Transaction in whole or in part or to continue
discussions relating thereto by virtue of this Agreement or any
written or oral expression with respect to such a Possible
Transaction by any of its Representatives. Prior to the
execution and delivery of the Definitive Agreement, either party
may terminate discussions and negotiations regarding a Possible
Transaction at any time, wit lout any liability whatsoever, save
for the obligations and duties specifically agreed to herein For
the purposes hereof, the term “Definitive Agreement”
does not include an executed letter of intent or any other
preliminary written agreement nor does it include any written or
verbal acceptance of an offer or bid.
8. Notices. All notices,
requests, consents, and other communications required or
permitted hereunder shall be in writing and shall be personally
delivered, mailed using first-class, registered, or certified
mail, postage prepaid, sent using a nationally recognized
overnight courier to the following addresses or to such other
address as the parties hereto may designate in writing:
ALCATEL LUCENT:
ALCATEL LUCENT
000 Xxxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
Page 3 of 5
Xxxxxx Xxxx, XX 00000
Attn: Xxxx X. XxXxxx
Attn: Xxxx X. XxXxxx
with a copy to:
ALCATEL LUCENT
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
Attn: General Counsel
MOTIVE:
MOTIVE, INC.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx 0
Xxxxxx, XX 00000
XXX
Attn: General Counsel
All such notices, requests, consents and other communications
shall be deemed to be properly given (a) if delivered
personally to the address as provided in this Section, upon
delivery, (b) if sent by mail, three (3) business days
after the same has been deposited in mail, addressed and postage
prepaid as set forth above and (c) if delivered by
overnight courier to the address as provided in this Section, on
the earlier of the first business day following the date sent by
such overnight courier or upon receipt (in each case regardless
of whether such notice, request or other communication is
received by any other person to whom a copy of such notice is to
be delivered pursuant to this Section). Any Party from time to
time may change its address, facsimile number or other
information for the purpose of notices to that Party by giving
notice specifying such change to the other Party hereto.
9. Severability. If any term
or provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder
of the terms and provisions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired
or invalidated.
10. Entire Agreement: Amendments: Consent to
Assignment. This Agreement comprises the full
agreement between the Parties concerning the subject matter
hereof. This Agreement supersedes any prior understandings or
agreements, regardless of form, between the Parties with respect
to the subject matter hereof. No amendments, changes or
modifications may be made to this Agreement without the express
written consent of each of the Parties hereto. This Agreement
and the rights and obligations of a Party hereunder may not be
assigned, directly, indirectly, by operation of law or
otherwise, by either Part) without the prior written consent of
the other Party.
11. Governing Law and Venue. This
Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made
and to be performed therein, without giving effect to its
principles or rules regarding conflicts of laws, other than such
principles directing application of New York law. The state and
federal courts located in New York shall have non-exclusive
jurisdiction and venue over any dispute arising out of or
relating to this Agreement, and each Party consents to the
personal jurisdiction and venue of these courts. Each Party
waives any objection that it may now or hereafter have to the
laying of venue of any such proceeding in any court in the state
of New York and any claim that it may now or hereafter have that
any such proceeding in any court in the state of New York has
been brought in an inconvenient forum.
12. Remedies; Legal
Fees. Each Party acknowledges that the other
would be irreparably injured if the Receiving Party breaches any
of its obligations under this Agreement. The Parties each agree
that money damages would not be a sufficient remedy for any
breach of this Agreement and that, in the event of a breach by a
Party or its Representatives, the other Party shall be entitled
to equitable relief, including injunction and specific
performance, as a remedy for such breach. Such remedies shall
not be deemed to be the exclusive remedies for a breach of this
Agreement by a Party or its Representatives but shall be in
addition to all other remedies available at law or equity to the
non-breaching Party. Each Party expressly agrees to waive the
defense that a remedy in damages will be adequate, and agrees to
use its reasonable best efforts to cause its Representatives to
waive, any requirement for the securing or posting of any bond
in connection with any such remedy. In the event of litigation
relating to this Agreement, if a court of competent jurisdiction
determines that a Party or any of its Representatives have
breached
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this Agreement, then such Party shall be liable and pay to the
other Party the reasonable legal fees and expenses incurred by
the other Party in connection with such litigation, including
any appeal therefrom.
13. Waiver. Each Party
understands and agrees that no failure or delay by the other
Party in exercising any right, power or privilege under this
Agreement shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or future
exercise of any right, power or privilege hereunder.
14. Term of Agreement. This
Agreement and the obligations of the Parties hereunder shall
terminate two years from the date hereof.
15. Binding Effect. This
Agreement shall benefit and be binding upon the Parties and
their respective permitted successors and assigns.
16. Construction. This
Agreement has been negotiated by the Parties and their
respective attorneys, and the language of this Agreement shall
not be construed for or against either Party.
17. Counterparts; Facsimile
Signatures. This Agreement may be executed in
two or more counterparts, each of which shall be binding as of
the date first written above. Each such copy shall be deemed an
original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such
counterpart. This Agreement may be executed and delivered by
facsimile and upon such delivery the facsimile signature will be
deemed to have the same effect as if the original signature had
been delivered to the other party. The original signature copy
shall be delivered to the other party by overnight courier. The
failure to deliver the original signature copy
and/or the
nonreceipt of the original signature copy shall have no effect
upon the binding and enforceable nature of this Agreement.
IN WITNESS WHEREOF, this Nondisclosure Agreement has been
executed by the parties hereto as of the day and year first
written above.
Alcatel-Lucent
| By: |
/s/ Xxxxx
X. Xxxxx
|
Name: Xxxxx X. Xxxxx
Title: DEPUTY CFO
Motive, Inc.
a Delawara corporation
a Delawara corporation
| By: |
/s/ Xxxx
Xxxxxxxxx
|
Name: Xxxx Xxxxxxxxx
Title: GENERAL COUNSEL & SECRETARY
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