EXHIBIT 2.3
CONFIDENTIAL DISCLOSURE AGREEMENT
BETWEEN
EON COMMUNICATIONS CORPORATION
AND
CORTELCO SYSTEMS PUERTO RICO, INC.
EFFECTIVE AS OF JANUARY 30, 2002
CONFIDENTIAL DISCLOSURE AGREEMENT
This Confidential Disclosure Agreement ("AGREEMENT") is effective as of
January 30, 2002 ("EFFECTIVE DATE"), between EON COMMUNICATIONS CORPORATION, a
Delaware corporation ("EON"), and CORTELCO SYSTEMS PUERTO RICO, INC., a Puerto
Rico corporation ("CSPR"). EON and CSPR are sometimes referred to herein as the
"party" or the "parties."
WHEREAS, pursuant to the terms of the Distribution Agreement by and
between EON and CSPR dated as of January 30, 2002 (the "DISTRIBUTION
AGREEMENT"), the parties have entered into this Agreement to provide for the
protection of their Confidential Information (as defined below).
NOW, THEREFORE, in consideration of the mutual promises of the parties,
and of good and valuable consideration, it is agreed by and between the parties
as follows:
AGREEMENT
1. Definitions. the following terms, when capitalized herein, shall have the
meanings set forth below in this Section 1. Unless indicated otherwise, all
other capitalized terms which are used but are not otherwise defined herein
shall have the meanings ascribed to them in the Distribution Agreement.
1.1 "CONFIDENTIAL INFORMATION" shall mean any and all financial,
technical, commercial or other information of EON or CSPR, as appropriate
(whether written or oral), including, without limitation, all information,
notes, client lists and records, reports, analyses, financial statements,
compilations, studies, forms, business or management methods, marketing
data, fee schedules, information technology systems and programs,
projections, forecasts or trade secrets of EON or CSPR, as applicable,
whether or not such Confidential Information is disclosed or otherwise
made available to one party by the other party pursuant to this Agreement.
Confidential Information does not include any information that (i) is or
becomes generally available to and known by the public (other than as a
result of an unpermitted disclosure directly or indirectly by the
Receiving Party or its affiliates, advisors or representatives); (ii)
hereafter becomes available to the Receiving Party on a nonconfidential
basis from a source other than the Disclosing Party or its affiliates,
advisors or representatives, provided that such source is not and was not
bound by a confidentiality agreement with or other obligation of secrecy
to the Disclosing Party; or (iii) has already been independently developed
without any involvement by the Disclosing Party, or is hereafter
independently acquired or developed, by the Receiving Party without
violating any confidentiality agreement with or other obligation of
secrecy to the Disclosing Party.
1.2 "CONFIDENTIALITY PERIOD" means in perpetuity, after either(A)
the Distribution Date with respect to Confidential Information of the
Disclosing Party that is known to or in the possession of the Receiving
Party as of the Distribution Date or (B) the date of disclosure with
respect to Confidential Information that is disclosed by the Disclosing
Party to the Receiving Party after the Distribution Date.
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1.3 "DERIVATIVES" means: (a) for copyrightable or copyrighted
material, any translation, abridgment, revision or other form in which an
existing work may be recast, transformed or adapted; (b) for patentable or
patented material, any improvement thereon; and (c) for material which is
protected by trade secret, any new material derived from such existing
trade secret material, including new material which may be protected under
copyright, patent and/or trade secret laws.
1.4 "DISCLOSING PARTY" means the party owning or disclosing the
relevant Confidential Information.
1.5 "RECEIVING PARTY" means the non-owning party or recipient of
Confidential Information from the Disclosing Party.
1.6 "THIRD PARTY" means a Person other than EON and its respective
affiliates and employees and CSPR and its respective affiliates and
employees.
2. Confidentiality.
2.1 Confidentiality and Non-use Obligations. During the
Confidentiality Period, the Receiving Party shall (i) protect the
Confidential Information of the Disclosing Party by using the same degree
of care, but no less than a reasonable degree of care, to prevent the
unauthorized use, dissemination, or publication of the Confidential
Information as the Receiving Party uses to protect its own Confidential
Information of a like nature, (ii)not use such Confidential Information
except as expressly permitted under this Agreement or in any other
agreements entered into between the parties in writing, without prior
written consent of the Disclosing Party, and (iii) maintain all
Confidential information in trust and confidence and (iv) not disclose
such Confidential Information to any Third Party, except as expressly
permitted under this Agreement or in any other agreements entered into
between the parties in writing, without prior written consent of the
Disclosing Party.
2.2 Compelled Disclosure. If the Receiving Party believes that it
will be compelled by a court or other authority to disclose Confidential
Information of the Disclosing Party, it shall(i) give the Disclosing Party
prompt and timely written notice so that the Disclosing Party may take
steps to oppose such disclosure and (ii) cooperate with the Disclosing
Party in its attempts to oppose such disclosure. If the Receiving Party
complies with the above, it shall not be prohibited from complying with
such requirements to disclose, but shall cooperate with the Disclosing
Party to take all reasonable steps to make such disclosure subject to a
suitable protective order or otherwise prevent unrestricted or public
disclosure. Notwithstanding anything to the contrary, the parties may
permissibly disclose Confidential Information in public filings before the
Securities and Exchange Commission associated with the Distribution
Agreement and Ancillary Agreements.
2.3 No Restriction On Disclosing Party. Nothing in this Agreement
shall restrict the Disclosing Party from using, disclosing, or
disseminating its own Confidential
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Information in any way provided that, in so doing, it does not use,
disclose or disseminate any Confidential Information of the Receiving
Party.
2.4 No Restriction On Reassignment. This Agreement shall not
restrict reassignment of the Receiving Party's employees.
2.5 Third Party Restrictions. Nothing in this Agreement supersedes
any restriction imposed by Third Parties on their Confidential
Information, and there is no obligation on the Disclosing Party to conform
Third Party agreements to the terms of this Agreement.
2.6 Ownership of Confidential Information. All Confidential
Information of the Disclosing Party, and any Derivatives thereof whether
created by such Disclosing Party or the Receiving Party shall remain the
property of the Disclosing Party, and no license or other rights to the
Disclosing Party's Confidential Information or Derivatives is granted or
implied hereby. All materials (including, without limitation, documents,
drawings, models, apparatus, sketches, designs, lists and all other
tangible media of expression) furnished by the Disclosing Party to the
Receiving Party, and which are designated in writing to be the property of
the Disclosing Party, shall remain the property of the Disclosing Party.
3. Term and Termination. This Agreement may be terminated at any time before
the Distribution by EON in its sole discretion without the approval of CSPR or
the EON shareholders. In the event of such termination, no party shall have any
Liability of any kind to any other party. After the Distribution Date, this
Agreement may not be terminated except by an agreement in writing signed by each
of the parties.
4. Dispute Resolution. Any and all controversies, disputes or claims arising
out of, relating to, in connection with or resulting from this Agreement (or any
amendment thereto or any transaction contemplated hereby or thereby), including
as to its existence, interpretation, performance, non-performance, validity,
breach or termination, including any claim based on contract, tort, statute or
constitution and any claim raising questions of law, whether arising before or
after termination of this Agreement, shall be deemed a Dispute as defined in
Section 4.6 of the Distribution Agreement and shall be resolved exclusively by,
in accordance with, and subject to the procedures and limitations set forth in,
Section 4.6 of the Distribution Agreement.
5. Miscellaneous Provisions.
5.1 Incorporation of Distribution Agreement. The miscellaneous
provisions provided in Article V of the Distribution Agreement are
incorporated herein by reference as though set forth in full.
5.2 Injunctive Relief. A breach by either party of any of the
promises or agreements contained herein will result in irreparable and
continuing damage to the other party for which there will be no adequate
remedy at law, and such other party shall be entitled to injunctive relief
and/or a decree for specific performance, and such other relief as may be
proper (including monetary damages if appropriate).
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5.3 Infringement Suits. Neither party shall have any obligation
hereunder to institute any action or suit against Third Parties for
misappropriation of any of its Confidential Information or to defend any
action or suit brought by a Third Party that alleges infringement of any
intellectual property rights by the Receiving Party's authorized use of
the Disclosing Party's Confidential Information.
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WHEREFORE, the parties have signed this Confidential Disclosure Agreement
effective as of the Effective Date.
EON COMMUNICATIONS CORTELCO SYSTEMS
CORPORATION PUERTO RICO, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxx
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Xxxxx Xxxxxxx Xxxxxx Xxxxx
Chief Financial Officer President
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