Exhibit (d)(5)
NON-DISCLOSURE AGREEMENT
Whereas Tribune Company and Xxxxxx-Xxxxxx, Inc., on the one hand, and
CareerBuilder, Inc., on the other, (collectively, the "Parties"), are desirous
of exchanging information for the purpose of exploring the possibility of
establishing a business relationship with each other (the "Transaction"); and,
Whereas, each of the Parties has information which it considers proprietary
and confidential, including, but not limited to, information relating to its
existing and planned lines of business, financial forecasts, markets, customers,
suppliers, contracts, backlog, hardware and software systems, trade secrets and
stock ownership and all materials prepared on the basis of any of the foregoing
(collectively, "Confidential Information").
Now, therefore, the Parties hereto agree as follows:
1. One party hereto ("Owner") may disclose to the other party hereto
("Recipient") certain Confidential Information pursuant to this
Agreement which Owner deems proprietary and confidential. The Parties
agree that Recipient shall not use and shall prevent the disclosure of
any information it receives from Owner that is marked PROPRIETARY AND
CONFIDENTIAL, or similarly marked, or any other information (whether
delivered in writing or verbally) which by its nature would be
reasonably considered as confidential, to any other person, firm or
corporation or delivered in connection with the evaluation of the
Transaction, except as provided herein, and shall use the same degree
of care to avoid disclosure of such information as Recipient employs
with respect to its own Confidential Information of like importance.
2. Notwithstanding the provisions of Paragraph 1 above, the Parties may
disclose the Confidential Information disclosed under this Agreement
to their employees and/or agents, but only for the purpose of
supplying the Party with sufficient information to enable the Party to
evaluate the potential value of establishing a business and/or
contractual relationship with each other. The Recipient will inform
each of its employees, agents and affiliates (collectively,
"Representatives") who will receive Confidential Information of the
obligations under this Agreement and agrees to take all commercially
reasonable measures to restrain its Representatives from taking any
action that would constitute a breach of the terms of this Agreement.
In any event, the Recipient shall be responsible for any breach of the
terms of this Agreement by any of its Representatives.
3. The Parties hereto agree that information shall not be deemed
Confidential Information, and Recipient shall have no obligation with
respect to any such information which:
(i) was generally known to the public prior to the disclosure under
this Agreement;
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(ii) is already known to Recipient prior to October 27, 1999, as
evidenced by the written electronically stored records of the
Party dated prior to October 27, 1999; or
(iii) is or becomes publicly known through no wrongful act of
Recipient or any person to whom the Recipient discloses such
information; or
(iv) is received by a third party without breach of this Agreement
or any other obligation to maintain the confidentiality of such
information;
(v) is independently developed by Recipient; or
(vi) is approved for release by written authorization of Owner; or
(vii) is disclosed pursuant to the lawful requirement or request of a
governmental agency, or disclosure is required by operation of
law.
4. Each of the Parties agrees, unless otherwise required by law, not to
disclose to any other person the fact that the Confidential
information has been made available to the other Party, that
discussions or negotiations are taking place concerning the
Transaction between the Parties, or any of the terms, conditions or
other facts with respect thereto (including the status thereof).
5. All written data delivered by Owner to the Recipient pursuant to this
Agreement shall be and remain the property of Owner, and all such
written data, and all copies thereof, shall be promptly returned to
Owner upon written request, or destroyed at Owner's option.
6. This Agreement shall be binding on, and shall inure to the benefit of,
the Parties hereto, their heirs, successors, and assigns.
7. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise, expressed, implied, or
otherwise for any invention, discovery or improvement made, conceived
or acquired prior to or after the date of this Agreement.
8. This Agreement shall be construed, interpreted, and enforced pursuant
to the laws and judicial precedents of the State of California,
without reference to principles of conflicts of law.
9. This Agreement may be amended only by a written instrument duly
executed by each of the Parties.
10. The undersigned represent and warrant that they are authorized to
enter this Agreement and to be bound by the terms of this Agreement.
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11. Neither Party makes any representations or warranties as to the
accuracy or completeness of the Confidential Information and neither
Party shall have any liability to the other resulting from any use of
the Confidential Information which is consistent with this Agreement.
12. Without impairing any other provision hereof, each Party hereto will
promptly advise the other of any breaches of this Agreement.
13. Nothing in this Agreement shall impose any obligation upon the Parties
hereto to consummate a Transaction or to enter into any discussion or
negotiations with respect thereto.
14. This Agreement shall be effective from and after the date set forth
below and shall terminate eighteen months thereafter.
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IN WITNESS WHEREOF, the Parties hereto agree that the effective date of
this Agreement shall be June 20th, 2000.
Tribune Company
By: /s/ Xxxxx X. Xxxxxx
---------------------
Title: President, Tribune Interactive, Inc.
Date: June 20, 2000
Xxxxxx-Xxxxxx, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President
Date: June 20, 2000
CareerBuilder, Inc.
By: /s/ Xxxxx X. Xxxxxx
---------------------
Title: Senior Vice President and Chief Financial Officer
Date: June 20, 2000
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