MUTUAL NON-DISCLOSURE AGREEMENT
Exhibit
10.7
This
Agreement is made as of the 31st day of
October, 2008, by and among:
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(1)
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INDUFLEX
HOLDING NV, a Belgian company, with a registered office at 2000 Antwerp,
Frankrijklei 78 and registered with the Crossroads Bank of Enterprises
under enterprise number 0807.149.569 (the “Buyer”);
and
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(2)
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XXXXXX
INDUFLEX NV (formerly UCB Induflex NV, and soon to be renamed with a name
omitting any reference to “Rogers”), a Belgian corporation having its
registered office at Xxxxxxxxxxxxxxxxxx 000, 0000 Xxxxx, Xxxxxxx and
registered with the Crossroads Bank of Enterprises under enterprise number
0427693784 (the “Company”);
and
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(3)
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XXXXXX
CORPORATION, a Massachusetts corporation having its headquarters at Xxx
Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 (“Seller”).
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WHEREAS:
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(A)
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The
Buyer and the Seller have entered into that certain Stock Purchase
Agreement, dated as of the date hereof (the "Stock Purchase
Agreement"), providing for, among other things, the acquisition by
Buyer of all of the issued and outstanding shares of the
Company.
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(B)
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An
important portion of the value of the Company resides in its know-how and
other intellectual property, relating to the development, manufacture and
sale of laminates, coated tapes and films for purposes of shielding,
insulating, barring and identification (the “Business”), and the Buyer
seeks to protect that intellectual property (which is also known to
certain personnel of the Seller) from disclosure to third parties, and
from use by the Seller in ways other than those permitted by the various
agreements between Seller and the Buyer and/or the Company, including
without limitation the Production License Agreement between the Company
and the Seller, and the Non-Competition Agreement between the Buyer and
the Seller, both of even date
herewith.
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(C)
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Seller
likewise has an interest in making sure that confidential information
relating to the Seller and not primarily to the Company which may remain
in the possession of the Company and/or its personnel not be disclosed by
the Company to third parties or used for purposes other than bona fide
business purposes of the Company.
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NOW,
THEREFORE, in consideration of their mutual disclosures to each
other, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Confidential
Information
As used
herein, the term “Information” shall mean and include any and all hardware,
software, algorithms, trade secrets, know-how, information, business plans,
marketing plans, customer and supplier lists, and other business data, financial
statements, projections, lists, reports, studies, findings, formulae,
specifications, designs, inventions, and other data or knowledge of any kind,
regardless of the form of media upon which it appears (and specifically
including electronic or computer data and computer
software). “Confidential Information” shall mean and include (a) any
and all confidential or proprietary Information in the possession of the Company
or the Buyer which relates primarily to the Seller (other than that which is
provided by Seller in connection with Buyer’s acquisition of the Company), and
(b) any and all confidential or proprietary Information in the possession of the
Seller which relates to the Company and the Business; and in either such case
either (i) is reasonably self-evident as being confidential or
proprietary in nature, it being understood, for the avoidance of
doubt, that customer and supplier lists, business plans, marketing plans and
similar business data shall in any event be considered as Confidential
Information, or (ii) is so marked (if in tangible form), indicating that such
Information is proprietary or confidential.
Notwithstanding
the foregoing, Confidential Information shall not mean or include Information
which the recipient clearly demonstrates in a written notice delivered to the
provider promptly upon discovery, recognition or receipt, whichever first
occurs:
(i) through
no fault of the recipient, was already available to the trade or the general
public at the time the confidential Information was received or became available
to the trade or the general public thereafter;
(ii) was
disclosed to the recipient by a third party which (a) had legitimate possession
thereof, (b) has the right to disclose such Confidential Information to the
receiving party, and (c) had not obtained such Confidential Information from or
through the recipient, directly or indirectly; or
2.
Use and Disclosure of
Confidential Information
Each of
the parties hereto shall hold in confidence and not disclose to others, and
shall not utilize in any manner whatsoever (except as permitted by the Stock
Purchase Agreement or by any of the Related Agreements, as defined therein), any
Confidential Information. Each of the parties shall use reasonable commercial
efforts to make sure that their respective employees and other personnel abide
by the obligations contained herein.
3.
Term.
This
Agreement shall remain in effect for ten (10) years from the date
hereof.
4.
Entire Agreement;
Amendments and Modifications; Successors and Assigns
This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof, and supersedes any and all written or oral understandings
or agreements with respect to the subject matter hereof. No term hereof shall be
amended, modified or changed, nor may any right hereunder be waived, except by
an instrument in writing duly executed and delivered by the party sought to be
charged therewith. This Agreement may not be assigned by a party
without the specific written consent of the other party. This
Agreement shall be binding upon permitted successors and assigns of the parties
hereto. Each party shall procure that its Affiliates (as defined in the Stock
Purchase Agreement) shall comply with this Agreement and this Agreement is also
entered into for the benefit of each party’s Affiliates.
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5.
Equitable
Enforcement.
Each party hereto hereby confirms that damages at law may be an inadequate
remedy for the breach or threatened breach of this Agreement and agrees that, in
the event of a breach or threatened breach by a party of any provision hereof,
the other party's rights and obligations hereunder shall be enforceable by
specific performance, injunction, or other equitable remedy, in addition to and
not in lieu of any rights to damages at law or other rights provided by statute
or otherwise for a breach or threatened breach of any provision
hereof. Accordingly, each party hereto hereby waives and agrees not
to assert any objection to such equitable relief based upon the purported
existence of an adequate remedy at law, notwithstanding that another party may
also assert claims for damages at law or other claims as an alternative to, or
in addition to, such equitable relief.
6.
Captions.
Captions are for convenience only and shall not be deemed to be a part of this
Agreement, nor shall be taken into any consideration in the interpretation
hereof.
7.
Governing
Law.
This Agreement shall be governed by and interpreted in accordance with the law
of the Belgium, and exclusively enforced by the courts of competent jurisdiction
located therein.
IN WITNESS
WHEREOF, the parties have duly executed and delivered this Agreement as of the
date first above set forth.
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XXXXXX
INDUFLEX NV
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By:
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/s/ X. X.
Xxxxxxxxx
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Name
and title:
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X. X. Xxxxxxxxx,
Managing Director
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INDUFLEX
HOLDING NV
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By:
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/s/ Xxxx
Xxxxxxxxxx
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Name
and title:
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Xxxx Xxxxxxxxxx, as
Managing Director of
Gevepe BVBA, Managing
Director of Induflex Holding NV
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XXXXXX
CORPORATION
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By:
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/s/ Luc Van
Eenaeme
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Name
and title:
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Luc Van Eenaeme, Vice
President Xxxxxx Europe
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