CONFIDENTIALITY AGREEMENT
Exhibit
(d)(ii)
This Confidentiality Agreement (the
“Agreement”) is made this 24 October 2008
between
Wavecom SA (“Wavecom”), a French
société anonyme, having its registered office at 0
xxxxxxxxx xx Xxxxxx, Xxxx-xxx-Xxxxxxxxxx, 00000
Cedex — France;
And
Sierra Wireless, Inc., a company organized under the laws
of Canada, having its registered office at 00000 Xxxxxxxx Xxx,
Xxxxxxxx, XX Xxxxxx, X0X 0X0 (“Sierra”)
1. In connection with Sierra’s consideration of a
possible strategic transaction with Wavecom (the
“Transaction”), each party is prepared to
furnish and make available to the other party (each disclosing
party, a “Disclosing Party,” and each receiving
party, a “Receiving Party”, including in each
case their respective affiliates and Representatives (as defined
below)) certain confidential and proprietary information
(whether prepared by the Disclosing Party, its advisors or
otherwise) concerning it, its business and the properties of its
business. All such information furnished or made available by a
Disclosing Party to a Receiving Party in any form (either
orally, visually or in writing including, in particular, via
e-mail or in
the form of electronic files or graphic materials), whether
before or after the date of this Agreement, is collectively
referred to in this Agreement as “Confidential
Information”.
2. As a condition to being furnished or granted access to
the Confidential Information of the Disclosing Party, each
Receiving Party agrees to keep such Confidential Information
(and Notes, as defined below, to the extent derived from the
Confidential Information) confidential, and that prior to being
given access to Confidential Information, each of its affiliates
and each of the directors, officers, employees, agents, advisors
and representatives (“Representatives”) of such
Receiving Party and its affiliates will be advised of the
confidential nature of the Confidential Information and will
commit to abide by the terms of this Agreement; provided that
each Receiving Party shall be responsible for any breach of this
Agreement by it, its Representatives, its affiliates, or its
affiliates’ Representatives (except those who shall have
adhered to this Agreement or have directly executed a
confidentiality agreement with the Disclosing Party and agreed
to be bound personally to the Disclosing Party by similar
obligation as those imposed on the Receiving Party pursuant to
this Agreement). As used in this Agreement,
“Affiliate” of a person means any other person
that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with,
such person. The term “person” as used in this
Agreement shall be broadly interpreted to include, without
limitation, any individual, corporation, company, partnership,
limited liability company or other entity or group.
3. In consideration of Confidential Information being made
available to it, each Receiving Party further agrees:
(a) not to use any such Confidential Information, or any
notes, summaries, reports, or other material derived by it, its
affiliates, or its affiliates’ Representatives in whole or
in part in whatever form maintained (collectively,
“Notes”), in each case except for the purpose
of evaluating, negotiating, implementing
and/or
financing a possible Transaction;
(b) to use the same degree of care, but no less than a
reasonably high degree of care, as it uses with its own
confidential information to prevent the disclosure of any such
Confidential Information or Notes except to its affiliates or to
its affiliates’ Representatives, in each case only to the
extent necessary to permit such affiliates or Representatives to
assist the Receiving Party in making the evaluations and
conducting the negotiations referred to in clause (a)
above; and
(c) not to disclose to any person, other than those persons
described in clause (b) above (and then only to the extent
described in such clause), that (i) such Confidential
Information has been made available to it, its affiliates, or
its affiliates’ Representatives, (ii) either of it,
its affiliates, or its affiliates’ Representatives may be
considering a possible Transaction with or concerning the other
party, or any of the possible terms, conditions, or other facts
with respect to any such Transaction, including the status
thereof, or (iii) the parties hereto have had, are having,
or propose to have, any discussions or negotiations with respect
to a possible Transaction; it being understood, for the
avoidance of doubt, that any information in any form (whether
oral or written)
relating to the existence of a possible Transaction, discussions
between Wavecom and Sierra and structuring, financial,
strategic, legal matters or any other pertaining to the
Transaction shall be considered as part of the Confidential
Information and covered by the provisions of this
Confidentiality Agreement.
4. A Disclosing Party may elect at any time by written
notice to the Receiving Party to terminate further access by the
Receiving Party to, and its review of, the Confidential
Information of the Disclosing Party. Each Receiving Party agrees
that in either such case it will promptly upon written request
of the Disclosing Party return or destroy (with such destruction
to be certified to the Disclosing Party upon its written
request) all Confidential Information of the Disclosing Party
and will destroy all related Notes without retaining any copy
thereof (and will promptly instruct its affiliates and its
affiliates’ Representatives to do so). No such termination
or return or destruction of Evaluation Material or Notes will
affect either parties’ obligations under this Agreement,
all of which obligations shall continue in effect.
Notwithstanding the foregoing, neither the Receiving Party nor
its affiliates or its affiliates’ Representatives shall be
obligated to return or destroy any Evaluation Material or
related Notes (i) which they must retain to comply with the
requirements of any applicable law or regulation or for
compliance purposes or in accordance with any bona fide
applicable retention policy, subject to otherwise complying with
the obligations of this Agreement; or (ii) which are copies
stored automatically by centralized IT
back-up
systems and processes.
5. The confidentiality obligations in this Agreement shall
be inoperative as to particular portions of the Confidential
Information and Notes if such information (i) is or becomes
generally available to the public other than as a result of a
disclosure by the Receiving Party, its affiliates, or its
affiliates’ Representatives, in breach of this Agreement,
(ii) was available to the Receiving Party, its affiliates,
or its affiliates’ Representatives on a non-confidential
basis prior to its disclosure by the Disclosing Party or its
affiliates or Representatives, or (iii) is or becomes
available to the Receiving Party, its affiliates, or its
affiliates’ Representatives on a non-confidential basis
from a source other than the Disclosing Party or its affiliates
or Representatives, which such source is, to the best of the
Receiving Party’s knowledge, not subject to a
confidentiality agreement with, or other obligation of secrecy
to, the Disclosing Party.
6. Sierra understands and agrees that, since Wavecom’s
stock are listed on the Euronext Paris market of NYSE Euronext
and on the NASDAQ under the form of American Depositary
Shares and Sierra may have access to inside information
(i.e., information on Wavecom that is (i) specific,
(ii) non-public and (iii) likely to have a material
effect on the market price of Wavecom’s securities if and
when made public, i.e., that a reasonable investor would
consider material in deciding whether to buy, hold or sell
Wavecom’s securities), Sierra must comply (and will
instruct its affiliates and its affiliates’ Representatives
to comply) with applicable securities laws and regulations,
which provide, in particular, that certain uses of inside
information, communication of inside information or manipulation
of the market price of any securities constitute a criminal
offence.
Sierra undertakes, for a period of three months commencing on
the date of this Agreement, not to (and will ensure that its
affiliates and its affiliates’ Representatives, and any
person acting on its or their behalf or in concert with it or
them will not), directly or indirectly, without the prior
written consent of Wavecom:
(i) acquire, agree to acquire, propose, seek or offer to
acquire, any securities of Wavecom, any warrant or option to
purchase such securities, any security convertible into any such
securities, or any other right to acquire such securities, or
any significant part of the business or assets of Wavecom or
enter into any arrangement (whether legally binding or not), or
do or omit to do any act, as a result of which Sierra or any
other person may become obliged to acquire any such securities,
business or assets; or
(ii) advise, assist or encourage or enter into any
discussions, negotiations, agreements or arrangements with any
other persons in connection with the foregoing,
provided that the foregoing provisions shall not apply, if any
of the action set out in paragraphs (i) and (ii) above
is preceding, is done as part of, or in connection with, or
pursuant to, a tender offer over Wavecom’s securities made
pursuant to applicable laws and regulations (including through a
solicited or an unsolicited offre concurrente to
Gemalto’s offer or to the offer of any third party).
7. Each party agrees that, without the prior written
consent of the other party, neither it nor its affiliates, nor
its affiliates’ Representatives will initiate any
communications concerning the subject matter of this Agreement
through any director, officer or employee of the other party or
any of its affiliates or Representatives who has not
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been specifically designated by the other party as an authorized
contact person with respect to the Transaction. In particular,
unless otherwise instructed in writing (which may include an
email communication) by a previously authorized contact person
within the other party, they will direct all communications and
all Confidential Information only to the persons listed in the
attached appendix.
8. Each party agrees that, until the earlier of
(i) the second anniversary of the date of execution hereof
and (ii) the date of completion of a Transaction whether
with Sierra or any third party, it will not, without the consent
of the other party directly or indirectly, solicit the
employment of any current officer or key employee
(“Covered Employee”) of the other party or its
affiliates with whom it comes into contact, or regarding whom it
receives sensitive information, in connection with its
evaluation of a possible Transaction; provided that the phrase
“solicit the employment of” shall not be deemed to
include general solicitations for employment not specifically
directed toward employees of such other party.
9. If a Receiving Party or any of its affiliates or its
affiliates’ Representatives is required by law, regulation,
court order or the rules of any relevant securities exchange to
disclose any Confidential Information of the Disclosing Party or
to make any other disclosure prohibited by this Agreement, it
agrees to provide the Disclosing Party with prompt notice of
each such requirement, to the extent practicable and permitted
by laws and regulations, so that such Disclosing Party may seek
an appropriate protective order or other appropriate remedy
and/or waive
compliance with the provisions of this Agreement. If, absent the
entry of a protective order or the receipt of a waiver under
this Agreement, the Receiving Party, its affiliates or its
Representatives are legally compelled to disclose Confidential
Information or Notes or else suffer significant penalty or
damage, it (or its affiliates or its affiliates’
Representatives) may disclose such information to the persons
and to the extent required without liability under this
Agreement; provided that such Receiving Party shall exercise its
reasonable commercial efforts to obtain reliable assurances that
confidential treatment will be accorded any such Confidential
Information.
Notwithstanding the provisions of this Agreement, the
confidentiality obligations in this Agreement and this Agreement
shall not prevent disclosure of Confidential Information (to the
extent necessary or required by laws and regulations), by Sierra
or any of its affiliates, its and their Representatives, in
documents relating to a public tender offer
and/or
merger control
and/or
regulatory filings. In such situation, the provisions of the
first paragraph of section 9 above shall not be applicable
to Sierra.
Notwithstanding the foregoing, Wavecom may at anytime, at its
full discretion, communicate to the market that it is
considering a possible Transaction, has engaged a financial
advisor to assist
and/or is
discussing with one or more possible strategic partners in
connection therewith, which communication, however, shall not
include any reference to Sierra unless expressly agreed by
Sierra.
10. With respect to all Confidential Information furnished
or made available to a Receiving Party, its affiliates, or its
affiliates’ Representatives, such Receiving Party
understands and agrees that none of the Disclosing Party, its
affiliates, or its affiliates’ Representatives, makes any
representations or warranties, express or implied as to the
accuracy or completeness thereof in this Agreement or otherwise
and shall have any liability to the Receiving Party in respect
thereof. Each party further agrees that, if the parties
determine to engage in a Transaction, such determination will be
based solely on such party’s own investigation, analysis,
and assessment of the Transaction.
11. A Receiving Party acquires no intellectual property or
other rights in the Confidential Information furnished or made
available by the Disclosing Party under this Agreement.
12. Unless and until a definitive agreement between the
parties or any of their affiliates with respect to a Transaction
has been executed by both parties, neither party nor any of its
affiliates and their respective Representatives will be under
any legal obligation of any kind whatsoever with respect to such
a Transaction by virtue of this or any written or oral
expression with respect to such a Transaction except, in the
case of this Agreement, for the matters specifically agreed to
herein. Sierra acknowledges and agrees that Wavecom may
separately enter into discussions with, and furnish or make
available confidential and proprietary information concerning
it, its business and the properties of its business to, one or
more third parties in connection with a possible tender offer or
other transaction on the securities of Wavecom.
13. This Agreement imposes no obligation on either party to
purchase, sell, license, transfer or otherwise dispose of any
technology, services or products. The parties do not intend that
any agency, joint venture or partnership
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relationship be created between them by this Agreement. Neither
this Agreement nor the disclosure or receipt of Confidential
Information shall be construed as creating any obligation for a
party to furnish or make available Confidential Information to
the other party or to enter into any agreement or relationship
with the other party.
14. This Agreement constitutes the entire agreement between
the parties with respect to the exchange of Confidential
Information and supersedes all prior agreements and
understandings, both written and oral, between the parties. The
terms of this Agreement may be modified or waived only by a
separate writing signed by each party that expressly modifies or
waives any such term.
15. It is understood and agreed that no failure or delay by
either party in exercising any right, power, or privilege under
this Agreement 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 right, power, or
privilege under this Agreement. The invalidity or
unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of
this Agreement, all of which shall remain in full force and
effect.
16. Neither party may assign or delegate all or any part of
its rights or obligations under this Agreement without the prior
written consent of the other party. Any attempted assignment or
delegation without such consent, except as expressly set forth
herein, will be void.
17. Each party acknowledges that money damages may not be a
sufficient remedy for any breach of this Agreement by it, its
affiliates, or its affiliates’ Representatives.
Accordingly, each party agrees that in the event of any such
breach, the non-breaching party, in addition to any other
remedies that it may have, shall be entitled to injunctive
relief or specific performance or both.
18. All notices pertaining to this Agreement shall be made
in writing sent to:
|
Wavecom
|
Sierra Wireless
|
|
|
0 xxxxxxxxx xx Xxxxxx, Xxxx-xxx-Xxxxxxxxxx,
|
00000 Wireless Way, Richmond, BC, | |
|
92442 Cedex — France
|
Canada, V6V 3A4 | |
|
Attention : Xxxxxx X. Xxxxx
|
Attention : Xxxxx Xx Xxxxxx |
19. This Agreement shall (i) be governed by and
construed in accordance with the laws of France, and
(ii) except as otherwise provided herein, expire on the
second anniversary of the date hereof. Each party hereby
irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the commercial court of Paris, France
for any action, suit, or proceeding arising out of or relating
to this Agreement and the transactions contemplated by this
Agreement (and agrees not to commence any action, suit, or
proceeding relating thereto except in such court).
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Wavecom
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
directeur général
Sierra Wireless, Inc.
By: /s/ Xxxxx XxXxxxxx
Name: Xxxxx XxXxxxxx
| Title: | Chief Financial Officer |
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