NEW CONFIDENTIAL DISCLOSURE AGREEMENT
This New Confidential Disclosure Agreement is entered into and effective as
of the 30 day of October, 1998 by and among Hewlett-Packard GmbH, a company
registered and incorporated under the laws of Germany ("Seller"), Multilayer
Technology GmbH & Co KG, a legal entity registered and organized under the laws
of Germany ("Buyer"), and The DII Group, a corporation organized under the laws
of the state of Delaware ("Guarantor").
RECITALS
WHEREAS, Seller and Buyer have entered into that certain Master Asset
Purchase Agreement, dated as of October 30, 1998 (the "MAPA"), providing for the
sale by Seller to Buyer of certain printed circuit board manufacturing assets
located at Seller's facility in Boblingen, Germany (the "PRCO") and the
assignment by Seller to Buyer of related liabilities.
WHEREAS, pursuant to the MAPA and in order to effect the transactions
contemplated thereby, Seller and Buyer, of the date hereof, have entered into, a
Technology License Agreement pursuant to which Seller shall license to Buyer
certain technology related to the PRCO and a Transition Services Agreement
pursuant to which Seller shall provide certain transition services to Buyer.
WHEREAS, Seller and Buyer desire to keep confidential, as provided herein,
the terms and conditions of the Technology License Agreement and the Transition
Services Agreement (collectively, the "Agreements") and certain information
disclosed by or to each of them pursuant to such Agreements.
WHEREAS, under Article 10 of the MAPA, the Guarantor has agreed to
guarantee the obligations of the Buyer.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, Seller, Buyer and Guarantor agree as follows:
1. General Obligation. Each party which receives Confidential Information
(as defined herein) (the "Recipient") agrees that it shall treat such
information in strict confidence and, except as permitted or required in
carrying out the terms of the Agreements or as required by law, it shall not use
or disclose such information, either during the term of the Agreements or
thereafter, without the prior written approval of the party who originally
disclosed such Confidential Information (the "Disclosing Party"). Without
limiting the foregoing, the Recipient shall use at least the same procedures and
degree of care which it uses to prevent the disclosure of its own confidential
information of like importance to prevent the disclosure of Confidential
Information disclosed to it by the Disclosing Party, but in no event less than
reasonable care.
2. Confidential Information. For purposes of this Agreement, "Confidential
Information" shall mean any information disclosed by one party to the other in
connection with activities under the Agreements, including but not limited to
technical, engineering, product and financial information; provided, that
information will be "Confidential Information" only if it is marked as
confidential at the time of disclosure or, if the material is not in written
form (e.g., it is orally disclosed), it is treated as confidential at the time
of disclosure and is designated as confidential in a written memorandum sent to
the recipient within thirty days of disclosure, summarizing the confidential
information sufficiently for identification.
3. Exceptions. The above obligations of non-disclosure and non-use shall
not apply to information which (i) was in the public domain at the time it was
communicated to the Recipient by the Disclosing Party, (ii) entered the public
domain subsequent to the time it was communicated to the Recipient by the
Disclosing Party through no fault of the Recipient, (iii) was rightfully
communicated to the Recipient by a third party free of any confidentiality
obligation, (iv) was independently developed by employees or agents of the
Recipient who had no knowledge of any Confidential Information communicated to
the Recipient by the Disclosing Party, or (v) was communicated in response to
the order or requirement of a court, administrative agency or other governmental
body; provided, that the Recipient shall provide prompt, advanced notice thereof
to enable the Disclosing Party to seek a protective order or otherwise prevent
such disclosure. Notwithstanding the foregoing, Confidential Information which
Seller transferred to Buyer pursuant to the MAPA (so that with respect to such
Confidential Information, Seller, after the Closing Date (as defined in the
MAPA) is treated as the Recipient) shall not be subject to exception (iv) above
unless Seller can demonstrate with competent written proof that it has met each
of the requirements described in exception (iv) for activities which occurred
after the Closing Date.
4. Authorization: No Representation of Accuracy. Each Disclosing Party
warrants that it has the right to provide to the Recipient any Confidential
Information so disclosed to the Recipient under this Agreement. Each party
understands and acknowledges that, neither party nor any of its representatives
or affiliates makes herein any representation or warranty, express or implied,
as to the accuracy or completeness of the Confidential Information made
available by it or to it. Each party agrees that neither party nor any of its
representatives or affiliates shall have any liability hereunder to the other
party or to any of its representatives or affiliates relating to or resulting
from the use of such other party's Confidential Information (other than for a
use of such Confidential Information in violation of this Agreement) or any
errors therein or omissions therefrom. NO OTHER WARRANTIES ARE MADE BY ANY PARTY
UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED
"AS IS."
5. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE, FOR BREACH OF OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT AND EVEN IF ANY LIMITED REMEDY PROVIDED HEREIN FAILS TO ACHIEVE ITS
ESSENTIAL PURPOSE. THIS LIMITATION SHALL NOT APPLY IN THE CASE OF DAMAGES CAUSED
BY DELIBERATE INTENT.
6. Government Regulations. Subject to applicable law, Recipient shall
adhere to the U.S., European and German export administration laws and
regulations and shall not export or reexport any technical data to any
proscribed country listed in the U.S., European and German export administration
regulations unless properly authorized by the U.S. or German government.
7. Remedy. Each party hereby acknowledges and agrees that in the event of
any breach of this Agreement by the other party, including, without limitation,
the actual or threatened unauthorized disclosure or unauthorized use of a
Disclosing Party's Confidential Information, the Disclosing Party may suffer an
irreparable injury, such that no remedy at law will afford it adequate
protection against, or appropriate compensation for, such injury. Accordingly,
each party hereby agrees that the other party shall be entitled to specific
performance of the receiving party's obligations under this Agreement, as well
as such further relief as may be granted by a court of competent jurisdiction.
8. Miscellaneous
(a) Each party shall be responsible for any breach of this Agreement by
any of its representatives or affiliates.
(b) This Agreement contains the entire understanding of the parties hereto
with regard to the subject matter contained herein and supersedes all
prior agreements and understandings or memoranda of understanding
between or among any of the parties hereto.
(c) In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions of the Agreement shall not in any way be affected
or impaired thereby.
(d) This Agreement shall enure to the benefit of and shall be binding on
and enforceable by the parties and their respective successors and
permitted assigns. Neither party may assign any of its rights or
obligations hereunder without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed .
(e) No failure or delay by either party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, and no single
or partial exercise thereof shall preclude any other or future
exercise thereof or the exercise of any other right, power or
privilege hereunder.
(e) This Agreement shall be governed by and construed in accordance with
the laws of the Germany without giving effect to choice of law
doctrines.
IN WITNESS WHEREOF, the parties have executed this New Confidential Disclosure
Agreement as of the date first written above.
HEWLETT-PACKARD GmbH
/s/ Xxxx Xxxxxx
----------------------------
By: Xxxx Xxxxxx
Title: Managing Director
MULTILAYER TECHNOLOGY GmbH & CO KG
/s/ Xxxxx Xxxxxx
-----------------------------
By: Xxxxx Xxxxxx
THE DII GROUP, INC.
/s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
