EXHIBIT B
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (the "Agreement") is
entered into and effective as of the _____ day of __________, 2000 by and
between ____________________ ____________________, a __________ corporation
("__________"), with offices at ____________________, and ____________________,
a ____________________ corporation ("__________") whose principal place of
business is ____________________. ____________________ and ____________________
may each be referred to as a "Party" and both as "Parties."
WITNESSETH
WHEREAS, Krida Overseas Investments Trading Limited, a Cyprus company
("Krida"), and NuPro Innovations Inc., a Delaware corporation ("NuPro"), entered
into that certain Technology License Agreement as of June 1, 1999 (the "License
Agreement"), pursuant to which Krida granted to NuPro certain rights to
manufacture, market, sell and distribute NuPro Material (as defined in the
License Agreement);
WHEREAS, Krida and NuPro agreed not to disclose any Confidential
Information (as defined in the License Agreement) in the License Agreement
unless the party receiving such Confidential Information agreed to the terms of
this Agreement;
WHEREAS, the Parties desire to engage in discussions concerning
______________________________ with each other for their mutual benefit in
connection with __________________________;
WHEREAS, it may be necessary for a Party to disclose Confidential
Information;
WHEREAS, the Parties desire to protect the confidentiality of any
Confidential Information disclosed or exchanged pursuant hereto.
NOW, THEREFORE, for and in consideration of the mutual promises and
obligations contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereto
agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 DISCLOSURE PARTY/RECEIVING PARTY. The party from whom any Confidential
Information originates is the "Disclosing Party." The Party to whom
any Confidential Information is disclosed is the "Receiving Party."
1.2 CONFIDENTIAL INFORMATION. The term "Confidential Information" shall
have the meaning set forth in the License Agreement.
2. CONFIDENTIAL TREATMENT
The parties hereto agree that a Receiving Party and its Representatives
shall use the Confidential Information of the Disclosing Party solely for the
purpose of evaluating a negotiated transaction between __________ and
__________, that the Confidential Information of the Disclosing Party will be
kept confidential and that it and its Representatives will not disclose any of
the Confidential Information in any manner whatsoever. Each Party shall be
responsible for any breach of this Agreement by any of its Representatives and
each Party agrees, at its sole expense, to take all reasonable measures
(including, but not limited to, court proceedings) to restrain its
Representatives from prohibited or unauthorized disclosure or use of the
Confidential Information of the other party.
In addition, the parties hereto agree that, without the prior written
consent of the Disclosing Party, a Receiving Party and its Representatives will
not disclose to any other person the fact that the Disclosing Party's
Confidential Information has been made available to it, that discussions or
negotiations are taking place concerning a possible transaction between the
____________________ and _______________ or any of the terms, conditions or
other facts with respect thereto (including the status thereof) PROVIDED, that
either party hereto may make such disclosure if in the opinion of its outside
counsel such disclosure must be made in order that it not commit a violation of
law. The term "person" as used in this Agreement shall be broadly interpreted to
include the media and any corporation, partnership, group, individual or other
entity.
3. TERM
This Agreement is for an indefinite period of time unless earlier
terminated by an agreement in writing of the Parties.
4. APPROVED INDIVIDUALS
The Parties agree that access to Confidential Information will be
restricted only to those who have a material need for such Confidential
Information relating to the purpose for which it was disclosed and that access
to Confidential Information will be restricted only to employees and associates,
including, without limitation, any consultants or agents used or employed by the
receiving Party (the "Representatives"), who are bound by the terms of this
Agreement or other non-disclosure and confidentiality agreements that provide
the disclosing Party with all the protections against the disclosure included
herein. Upon the execution of this Agreement, the Parties shall become third
party beneficiaries of all such agreements. The Parties shall be responsible for
any breach of this Agreement by any of their Representatives.
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5. NOTICE OF REQUIRED DISCLOSURE
The parties hereto agree that in the event that a Receiving Party or any of
its Representatives are requested or required to disclose any of the
Confidential Information of the Disclosing Party, such Receiving Party shall
provide the Disclosing Party with prompt written notice of any such request or
requirement so that the Disclosing Party may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this
Agreement. If, in the absence of a protective order or other remedy or the
receipt of a waiver by a Receiving Party, such Receiving Party or any of its
Representatives are nonetheless, in the written opinion of counsel, legally
compelled to disclose Confidential Information of the Disclosing Party to any
tribunal or else stand liable for contempt or suffer other censure or penalty,
the Receiving Party or its Representatives may, without liability hereunder,
disclose to such tribunal only that portion of the Disclosing Party's
Confidential Information which such counsel advises Receiving Party it is
legally required to disclose, provided that such Receiving Party exercises its
best efforts to preserve the confidentiality of the Disclosing Party's
Confidential Information, including, without limitation, by cooperating with the
Disclosing Party to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded such Confidential
Information by such tribunal.
6. DISPOSITION OF CONFIDENTIAL INFORMATION
All Confidential Information (and all copies thereof) furnished to the
Receiving Party or its Representatives, shall be promptly destroyed or returned
to the Disclosing Party within ten (10) days of a written request by the
Disclosing Party and no copy thereof (or notes, analyses, compilations,
interpretations or other documents prepared by the Receiving Party and its
Representatives in connection therewith) shall be retained. This Agreement shall
cover all disclosures made between the Parties during its Term and shall survive
the termination of the Parties' association. Notwithstanding the return or
destruction of Confidential Information, each party and its Representatives will
continue to be bound by the obligations of confidentiality and other obligations
hereunder.
7. PUBLICITY
Neither Party will publicly announce or disclose any term or condition
contained in this Agreement or in the Confidential Information, advertise or
release any publicity regarding this Agreement or the Confidential Information,
or disclose that the aforesaid discussions are taking place or the nature of
such discussions, without the prior written consent of the other Party,
provided, however, that each Party shall be entitled to make such disclosures as
may be required by law or court order, or necessary to enforce this Agreement,
and then only with prior written notice given as soon as reasonably possible to
the other Party.
8. SPECIAL PROCEDURES OR CONDITIONS
The transfer of Confidential Information hereunder may require special
procedures or conditions. In such cases, the specific procedures or conditions
shall be defined in an Addendum hereto and agreed to in writing by the Parties
prior to disclosure. Such Addendum may be modified from time to time by written
agreement of the Parties.
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9. NO WARRANTIES
Each party hereto understands and acknowledges that the other party and its
Representatives make no representations or warranties, express or implied, as to
the accuracy or completeness of such other party's Confidential Information.
Each party understands and agrees that no contract or agreement providing for
any transaction between ___________________ and ____________________ shall be
deemed to exist between the parties by reason of this Agreement, and each party
hereto hereby waives, in advance, any claims (including, without limitation,
breach of contract) in connection with any transaction between
__________________ and ___________________ unless and until _________________
and _________________ shall have entered into an agreement providing for the
same.
10. INJUNCTIVE RELIEF AND OTHER REMEDIES
The recipient of Confidential Information disclosed pursuant hereto agrees
that any breach or violation by any Party, its Representatives, or its or their
assignees or heirs, of its or their obligations under this Agreement would cause
irreparable injury to the disclosing Party. In any proceeding seeking injunctive
relief to prevent any breaches or violations of this Agreement, the disclosing
Party shall be entitled to appropriate injunctive relief without the posting of
any bond or other security upon a showing of likelihood of success on the
merits, and without a showing of irreparable harm, balancing of xxxxx,
consideration of the public interest, or the inadequacy of monetary damages as a
remedy. In no event shall the injunctive relief described in this Section 10 be
considered the disclosing Party's exclusive remedy for any breach or violation
by the receiving Party or its Representatives of their obligations under this
Agreement.
11. INDEMNIFICATION
Any Party breaching any term or condition of this Agreement shall
indemnify, defend, and hold harmless the other Party from any claim, expense, or
liability arising from such breach, in addition to the remedies set forth in
Section 10 herein.
12. DISPUTE RESOLUTION
All claims, disputes and other matters in controversy (herein called
"dispute(s)") arising directly or indirectly out of or related to this
Agreement, or the breach thereof, whether contractual or noncontractual, and
whether during the term or after the termination of this Agreement, shall be
resolved exclusively according to the procedures set forth in this Section 12.
12.1 MEDIATION. Neither Party shall commence an arbitration proceeding pursuant
to the provisions of Section 12.2 below unless such Party shall first give
a written notice (a "Dispute Notice") to the other Party setting forth the
nature of the dispute. The Parties shall attempt in good faith to resolve
the dispute by mediation under the Commercial Mediation Rules of the
American Arbitration Association (AAA) in effect on the date of the Dispute
Notice. If the Parties cannot agree on the selection of a mediator within
twenty (20) days after delivery of the Dispute Notice, the mediator will be
selected by the AAA. If the Dispute has not been resolved by mediation as
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provided above within forty (40) days after delivery of the Dispute Notice,
then the Dispute shall be determined by arbitration in accordance with the
provisions of Section 12.2 hereof,
12.2 ARBITRATION.
12.2.1 Any dispute that is not settled through mediation as provided in
Section 12.1 above shall be resolved by arbitration in the City of
____________, _________, United States of America, governed by the Federal
Arbitration Act, 9 U.S.C. 1 et seq., and administered by the AAA under its
Commercial Arbitration Rules in effect on the date of the Dispute Notice,
as modified by the provisions of this Section 12.2, by a single arbitrator.
Each Party shall be entitled to strike on a peremptory basis, for any
reason or no reason, any or all of the names of potential arbitrators on
the list submitted to the Parties by the AAA. In the event the Parties
cannot agree on a mutually acceptable single arbitrator from the one or
more lists submitted by the AAA, the AAA shall designate three persons
which designees may, at the option of the Parties, include persons named on
any list previously submitted by the AAA. Each Party shall be entitled to
strike one of such three designees on a peremptory basis, indicating its
order of preference with respect to the remaining designees, and the
selection of the arbitrator shall be made from among such designee(s) which
have not been so stricken by either Party in accordance with their
indicated order of mutual preference to the extent possible. The arbitrator
shall base the award on applicable law and judicial precedent and, unless
both Parties agree otherwise, shall include in such award the findings of
fact and conclusions of law upon which the award is based. Judgment on the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. The arbitrator(s) shall award the prevailing Party in
the arbitration proceeding its reasonable attorneys' fees and costs
incurred in connection with such arbitration proceedings. In addition, the
arbitrator(s) shall have the authority to allocate at its/their discretion
the costs of administration of the arbitration proceedings.
12.2.2 Upon the application by either Party to a court for an order
confirming, modifying, or vacating the arbitration award, the court shall
have the power to review whether, as a matter of law based on the findings
of fact determined by the arbitrator(s), the award should be confirmed,
modified, or vacated in order to correct any errors of law made by the
arbitrator(s). In order to effectuate such judicial review limited to
issues of law, the Parties agree (and shall stipulate to the court) that
the findings of fact made by the arbitrator(s) shall be final and binding
on the Parties and shall serve as the facts to be submitted to and relied
on by the court in determining the extent to which the award should be
confirmed, modified, or vacated.
12.3 COSTS AND ATTORNEYS' FEES. If either Party fails to proceed with mediation
or arbitration as provided herein or unsuccessfully seeks to stay such
mediation or arbitration, or fails to comply with any arbitration award, or
is unsuccessful in vacating or modifying the award pursuant to a petition
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or application for judicial review, the other Party shall be entitled to be
awarded costs, including reasonable attorneys' fees, paid or incurred by
such other Party in successfully compelling such arbitration or defending
against the attempt to stay, vacate, or modify such arbitration award
and/or successfully defending or enforcing the award.
12.4 TOLLING STATUTE OF LIMITATIONS. All applicable statutes of limitations and
defenses based upon the passage of time shall be tolled while the
procedures specified in this Section 12 are pending. The Parties will take
such action, if any, required to effectuate such tolling.
13. MISCELLANEOUS
13.1 NO WAIVER. No failure or delay by either Party in exercising any
right, power or privilege shall operate as a waiver thereof, nor shall
any single or partial exercise thereof, preclude any other or further
exercise thereof, or the exercise of any other right, power or
privilege hereunder.
13.2 RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement shall
be construed as creating any obligation or an expectation by either
Party to enter into a business relationship with the other Party, or
an obligation to refrain from entering into a business relationship
with any third Party.
13.3 CHOICE OF LAW, CHOICE OF FORUM. The validity, interpretation,
performance and enforcement of this Agreement shall be governed by the
laws of the State of Arizona without regard to the conflict of laws
principles thereof. The Company hereby irrevocably and unconditionally
consents to the jurisdiction of the federal and state courts of the
State of Arizona (including the United States Bankruptcy Court for the
District of Arizona) for any action, suit or proceeding arising out of
or relating to this Agreement, and agrees not to commence any action,
suit or proceeding related thereto except in such courts. The Company
further hereby irrevocably and unconditionally waives any objection to
the laying of venue of any action, suit or proceeding arising out of
or relating to this Agreement in the federal and state courts of the
State of Arizona (including the United States Bankruptcy Court for the
District of Arizona), and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such
court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum. The parties further
agree that service of any process, summons, notice or document by U.S.
registered mail to the parties' addresses set forth above shall be
effective service of process for any action, suit or proceeding
brought against the parties in any such court.
13.4 SEVERABILITY. In the event of the invalidity of any portions of this
Agreement under any applicable law, the Parties agree that such
invalidity shall not affect the validity of the remaining portions of
this Agreement.
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13.5 AMENDMENTS. This Agreement may not be altered or amended except by
written agreement of the Parties hereto.
13.6 NOTICES. Any notices required or permitted hereunder shall be sent by
telegram or by Federal Express or similar overnight delivery service
(return receipt requested) or delivered by hand, to the Parties at
their respective addresses as set forth above. Any such notices shall
be effective on the earlier of (a) the date of its receipt or (b) the
date that is three (3) days after its mailing as provided herein. Each
Party shall provide notice to the other Party of any change in its
address in accordance with the provisions of this Section.
13.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of
which together shall constitute one and the same Agreement.
13.8 SUCCESSORS AND ASSIGNS. This Agreement is binding on each Party's
successors and assigns including, without limitation, any affiliates,
subsidiaries or related Parties.
13.9 ENTIRE AGREEMENT. This Agreement and any Addendum thereto contain the
entire agreement between the Parties as to the subject matter hereof
and supersedes all prior oral or written agreements and understandings
between the Parties. No other representations have been made relating
to the subject mater hereof.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
first date written above.
By: By:
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Name: Name:
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Title: Title:
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Telephone: Telephone:
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Fax: Fax:
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