EXHIBIT (d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
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THIS AGREEMENT is made effective as of February 9, 2001 (the "Effective
Date") by and between Proxicom, Inc. ("Proxicom"), with offices at 00000
Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, XXX and Dimension Data
("Dimension"), with its headquarters in Johannesburg, South Africa (each
individually a "Party" and collectively the "Parties").
WITNESSETH:
WHEREAS, in connection with exploring and evaluating a possible business
transaction (the "Transaction") and for the purposes of the ongoing
Transaction, the Parties recognize the need to disclose to one another
certain of their Confidential Information (as defined below); and
WHEREAS, the Parties wish to stipulate the terms and conditions upon which
such Confidential Information will be disclosed by one Party to the other
Party hereunder;
NOW, THEREFORE, the Parties agree as follows:
1. "Confidential Information" means information in whatever form disclosed by
or on behalf of one Party (the "Disclosing Party") to the other Party (the
"Receiving Party") before, on or after the Effective Date hereof which
relates to a Disclosing Party's business or the Transaction including
without limitation: business, financial, human resources, and technical
materials, information and data, or information which although not directly
related to the Transaction, is nevertheless disclosed as a result of or in
connection with the Parties' discussions of the Transaction together with
analyses or other documents prepared by the Receiving Party or any of the
Receiving Party's affiliates, employees, representatives and/or consultants
that contain or otherwise reflect such Confidential Information.
2. The Receiving Party shall use the Disclosing Party's Confidential
Information only for the purpose of evaluating the Transaction and for the
purposes of the ongoing Transaction, and shall protect such Confidential
Information from disclosure to third parties, using the same degree of care
used to protect its own proprietary information of like importance, but in
any case using no less than a reasonable degree of care. The Receiving
Party may disclose the Disclosing Party's Confidential Information to its
affiliates, its employees, its representatives and its consultants, in each
case if such affiliates, employees, representatives and consultants have a
need to know, and providing such affiliates, employees, representatives and
consultants (i) use the Confidential Information for the purposes of the
Transaction only, and (ii) are bound to protect the Confidential
Information to the same extent as the Receiving Party is bound. The Parties
shall each be responsible for any breach of the terms of this Agreement by
them or their respective affiliates, employees, representatives and/or
consultants and hereby agree, at their sole expense, to take all reasonable
measures (including but not limited to court proceedings) to restrain their
respective affiliates, employees, representatives and/or consultants from
prohibited or unauthorized disclosure or use of the Confidential
Information. The term "affiliate" means any person or entity controlling,
controlled by or under common control with a Party.
3. The restrictions of this Agreement on use and disclosure of Confidential
Information shall not apply to information that:
(a) the Receiving Party can demonstrate is in the lawful possession or
control of such Party on a non-confidential basis at the time of its
disclosure hereunder; provided the source of such information was free to
disclose it to the Receiving Party without obligation (whether contractual,
legal, fiduciary or otherwise) to the Disclosing Party;
(b) is or becomes publicly known other than through disclosure by the
Receiving Party or the Receiving Party's affiliates, employees,
representations and/or consultants;
(c) the Receiving Party obtained from a third party not known by the
Receiving Party to be subject to any obligation (whether contractual,
legal, fiduciary or otherwise) to the Disclosing Party prohibiting such
disclosure;
(d) the Receiving Party can demonstrate was developed independently by
such Party without reference to the Confidential Information; or
(e) is lawfully required to be disclosed to any governmental agency or is
otherwise required to be disclosed by law; provided, however, that before
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making such disclosure, the Party planning to make such disclosure shall,
to the extent permitted by applicable law (i) give the other Party a
reasonable opportunity to interpose an objection and/or take action to seek
confidential handling of such information and (ii) reasonably cooperate
with the other Party, at the other Party's expense, to seek confidential
handling of such information.
4. Each Party agrees that, for a period of one (1) year from the Effective
Date hereof, neither it nor any of its affiliates will solicit for
employment, directly or indirectly, any member of the other Party's senior
management with whom it first had contact, or who was specifically
identified to it, during the period of its evaluation of the Transaction;
provided, however, that this paragraph will not prevent either Party from
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employing any person who contacts such Party on his or her own initiative
without any direct or indirect solicitation by or encouragement from such
Party. For purposes of this paragraph, "solicit for employment" shall not
be deemed to include any general solicitations of employment by one Party
not specifically directed towards employees of the other Party. Nothing
herein shall prevent either Party from, directly or indirectly, soliciting
for employment or hiring any member of the other Party's senior management
whose employment with such other Party has been terminated.
5. Confidential Information disclosed under this Agreement (including
information in computer software or held in electronic storage media) shall
be and shall remain the property of the Disclosing Party. The Receiving
Party, upon the written request of the Disclosing Party at any time, shall
promptly return or destroy all such tangible Confidential Information of
the Disclosing Party in its possession, and the Receiving Party shall
thereafter retain no such Confidential Information in any form. The
Receiving Party shall be fully responsible for the return or destruction of
all Confidential Information disclosed to its affiliates, its employees, it
representatives and/or its consultants.
6. Without the prior written consent of the other Party, a Party will not
disclose (other than as anticipated elsewhere in this Agreement) to any
third party any information (including Confidential Information) regarding
the Transaction, including without limitation, the fact that discussions
are occurring concerning the Transaction, any of the terms or conditions
relating to the Transaction being discussed by the Parties, or the
existence of this Agreement.
7. This Agreement shall become effective on the date first set forth above and
shall continue for the longer of (i) one (1) year from the Effective Date
or (ii) one (1) year after the termination of any definitive agreement
entered into by the Parties with respect to the Transaction, except as
otherwise explicitly stated herein.
8. The Parties understand and agree that unless and until a definitive
agreement between Proxicom and Dimension with respect to a possible
Transaction is executed and delivered, neither Proxicom nor Dimension will
be under any legal obligation of any kind with respect to the Transaction
by virtue of this or any other written or oral expression, except for
matters expressly agreed herein. Neither Party makes any representation or
warranty as to the accuracy or completeness of any information disclosed
hereunder.
9. Dimension hereby acknowledges that Proxicom is disclosing its Confidential
Information in consideration of Dimension's agreement not to propose to
Proxicom or any other person or entity any transaction between Dimension
and Proxicom and/or its security holders or involving any of Proxicom's
securities or security holders unless Proxicom shall have requested in
writing that Dimension make such a proposal, and that Dimension will not
acquire, or assist, advise or encourage any other persons or entities in
acquiring, directly or indirectly, control of Proxicom or any of Proxicom's
securities, businesses or assets for a period of one (1) year from the date
of this Agreement unless Proxicom shall have consented in advance in
writing to such acquisition. Dimension also agrees that Proxicom shall be
entitled to equitable relief, including injunction, in the event of any
breach of the provisions of this paragraph and Dimension further agrees
that it shall not oppose the granting of such relief. Notwithstanding the
foregoing, Dimension shall not be subject to the restrictions provided in
this paragraph 9 if (i) at any time, any person or entity other than
Dimension announces an intention to acquire, directly or indirectly, any
voting
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securities or assets of Proxicom or (ii) Proxicom publicly solicits offers
for its acquisition or the acquisition of its business and/or assets in
their entirety.
10. To the extent that any Confidential Information may include materials
subject to the attorney-client privilege, work product doctrine or any
other applicable privilege concerning pending or threatened legal
proceedings or governmental investigations, the Parties understand and
agree that they have a commonality of interest with respect to such matters
and it is their respective desire, intention and mutual understanding that
the sharing of such material is not intended to, and shall not, waive or
diminish in any way the confidentiality of such material or its continued
protection under the attorney-client privilege, work product doctrine or
other applicable privilege. All Confidential Information that is entitled
to protection under the attorney-client privilege, work product doctrine
and other applicable privilege shall remain entitled to such protection
under these privileges, this Agreement, and under the joint defense
doctrine.
11. Each Party acknowledges that it is aware (and that its affiliates,
employees, representatives and consultants who are apprised of the possible
Transaction have been advised) that the United States and other applicable
securities laws prohibit any person who is aware of material, non-public
information about a company obtained directly or indirectly from that
company, from purchasing or selling securities of such company 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.
12. This Agreement: (a) is the complete Agreement of the Parties concerning the
subject matter hereof and supersedes any and all prior Agreements,
understandings or discussions with respect to the subject matter hereof;
(b) shall not be construed to create any obligation on the part of either
Party to complete the Transaction or to compensate the other Party in any
manner, except as may be set forth by a separate written Agreement duly
executed and delivered by the Parties; (c) may not be amended or in any
manner modified except in a writing signed by the Parties; and (d) shall be
governed and construed in accordance with the laws of the United States
and, in particular, the State of New York except its rules as to choice of
law. The Parties agree and hereby consent to the jurisdiction and venue of
the state and federal courts for the Borough of Manhattan, New York, New
York. If any provision of this Agreement is found to be unenforceable, the
remainder shall be enforced as fully as possible and the unenforceable
provisions shall be deemed modified to the limited extent required to
permit its enforcement in a manner most closely representing the intention
of the Parties as expressed herein. Without prejudice to the rights and
remedies otherwise available to the Parties, the Parties agree that money
damages would not be a sufficient remedy for any breach of this Agreement
by either Party or the affiliates, employees, representatives and/or
consultants of either Party and, accordingly, that the Parties shall be
entitled to equitable relief, including injunctive relief and/or specific
performance, if either Party (including the affiliates, employees,
representatives and/or consultants thereof) breaches or threatens to breach
any of the provisions of this Agreement. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of
which shall constitute the same Agreement.
IN WITNESS WHEREOF, each of the Parties hereto has caused the Agreement to be
executed by its duly authorized representative:
PROXICOM, INC. DIMENSION DATA
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ X.X. Xxxxxxx
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Print Name: Xxxxxxx X. Xxxxxx Print Name: X.X. Xxxxxxx
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Title: Executive Vice President & CFO Title: Director
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Date: 2/9/2001 Date: 12/2/2001
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