EXHIBIT (c)(4)
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement, made and entered into this day of July,
1996, by and between PHONETEL TECHNOLOGIES, INC., 0000 Xxxxxx Xxxxxx,
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000, and COMMUNICATIONS CENTRAL
INC., 0000 Xxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000,
collectively referred to hereafter as the "parties", singularly as a "party."
RECITALS
The parties intend to commence discussions and exchange certain documents and
information in connection with a potential business relationship. The
information given one to the other will, for the most part, be confidential
trade secrets and contain items not publicly available.
The parties desire to protect the confidentiality of certain information that
may be disclosed.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
hereinafter contained and other good and valuable consideration acknowledged to
have been received, it is agreed:
1. Definitions. For purposes of this Agreement, the following definitions
shall apply:
(a) The parties hereto shall include all their parent companies,
divisions, subsidiaries and affiliates.
(b) "Confidential Information" shall mean any information of a
confidential and/or proprietary nature, including but not limited to,
information relating to the current or proposed business plans of the
parties hereto and financial information related thereto, except for
that information specified in Section 7 below entitled "Exceptions."
Confidential Information, when disclosed in writing, machine-readable,
or other tangible form by one party to the other party, shall be
clearly marked as such. Such information, when disclosed orally by
one part to the other, shall be considered Confidential Information,
provided that within ten (10) working days of such disclosure the
disclosing party provides the other party a written summary of those
matters designated as Confidential Information.
2. Use of Confidential Information. During the course of the discussions
between the parties, they may disclose certain Confidential Information,
either by verbal or written communications. These disclosures will be made
upon the basis of the confidential relationship between the companies and
upon their agreement that, unless specifically authorized in writing by
the other, they will:
(a) use such Confidential Information solely for the purpose of
evaluating the proposed business relationship between themselves; and
(b) promptly return to each other, upon request, any and all tangible
material concerning such Confidential Information including all
copies and notes, whether such material was made, compiled by or
furnished by either party.
3. Nondisclosure. Each party agrees to receive and hold the Confidential
Information of the other party in strict confidence. Each party agrees
that it will treat such Confidential Information in the same manner as
it treats like information of its own that it does not wish to disclose
to the public, but, in all events, it shall use a reasonable degree of
care. To that end, neither party will make a copy of any Confidential
Information of the other party that is in documented form except for
use by employees with a need to know.
Each party further agrees not to distribute, disclose or discriminate the
Confidential Information in any way to anyone, except its employees who have
such need to know, nor use the Confidential Information for its own benefit
or the benefit of others, except as authorized in writing by the other party,
in any form whatever. Each party agrees that its disclosure of Confidential
Information to its employees who have such a need to know shall be limited
to only so much of such Confidential Information as is necessary for that
employee to perform his/her function.
No Confidential Information may be disclosed by the receiving party to any
third party unless the disclosing party is notified in writing, and the
disclosing party executes a Non-Disclosure Agreement with the third party
and the disclosing party provides written approval to the receiving party
that such Confidential Information may be disclosed to the third party.
4. Covenant Not to Trade. Each party acknowledges that certain securities of
each party are registered with the Securities and Exchange Commission and
are publicly traded, and that purchase or sale of such securities, based
upon material non-public information, including the Confidential
Information, may be deemed to violate the Federal securities laws, among
other things. Both parties covenant and agree, therefore, not to purchase
or sell securities of each other based on the Confidential Information,
until the Confidential Information is made publicly available by either
party or otherwise becomes publicly available.
2
5. No License. Nothing contained in this Agreement shall be construed as
granting or conferring any rights by license or otherwise in any
Confidential Information disclosed to the receiving party.
6. No Obligations. The furnishing of Confidential Information hereunder
shall not obligate either party to enter into any further agreement
or negotiation with the other or to refrain from entering into an
agreement or negotiation with any other entity.
7. Exceptions. The obligations imposed upon either party herein shall not
apply to Confidential Information:
(a) which is already in the public domain at the time the disclosing party
communicates it to the receiving party or which becomes available to
the public through no wrongful act of the receiving party; or
(b) which may be published prior to the date hereof, or
(c) which is already in the possession of the receiving party and not
subject to an existing agreement of confidence prior to receipt from
the disclosing party; or
(d) which is received from a third party without restriction and without
breach of this Agreement; or
(e) which is disclosed pursuant to a requirement or request of a
government agency or a court of competent jurisdiction, provided
however, that the receiving party shall notify the disclosing party
of such legal requirement prior to making the required disclosure and
that the receiving party shall use its reasonable efforts to obtain
protective arrangements for the requested Confidential Information; or
(f) which is developed by the receiving party, independently of and without
reference to any Confidential Information of the disclosing party or
any other information that the disclosing party has disclosed in
confidence to any third party; or
(g) which is disclosed by the receiving party to a third party with the
express prior written permission of the disclosing party.
Notwithstanding the above, all materials, including without limitation,
documents, writings, designs, drawings and specifications, furnished and that
are designated as proprietary information shall remain the sole property of the
disclosing party and shall be returned promptly to the disclosing party at its
request with all copies made thereof.
3
8. Termination of Obligation. The obligation to protect the Confidential
Information received hereafter shall continue for eighteen (18) months
following provision of the information, unless a specific request is
mutually agreed upon in writing to maintain the information on a
confidential basis for a different period of time.
9. Entire Agreement. This Agreement constitutes the entire Agreement between
the parties and supersedes any prior or contemporaneous oral or written
representations with regard to the subject matter hereof. This Agreement
may not be modified except by a writing signed by both parties.
10. Damages for Breach. The parties acknowledge that, in the event of a
threatened or actual breach of this Agreement, monetary damages may be
difficult to ascertain or inappropriate. Accordingly, a party shall be
entitled to injunctive relief in the event of a threatened or actual
breach of this Agreement.
11. Governing Law. This Agreement shall be construed and governed in
accordance with the laws of the State of Georgia.
12. Binding Authority. The parties acknowledge and verify that the persons
signing below are duly authorized to execute this Agreement and act on
behalf of the parties and to bind them to the specific terms noted above.
PHONETEL TECHNOLOGIES, INC.
Date: July 25, 1996 By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Chief Administrative Officer
Executive Vice President
COMMUNICATIONS CENTRAL INC.
Date: July 25, 1996 By: /s/ X. X. XxXxxxxx
----------------------------------
C. Xxxxxxx XxXxxxxx
Vice President, Finance
4
