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Title: Authorized Signatory |
Title: VP & General Counsel |
Effective Date: Jan. 2, 2007 |
Address: 5450 Great America Pkway |
EX-99.D.3 |
MUTUAL NON-DISCLOSURE AGREEMENT |
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the |
“Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a |
Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). |
Pyramid and the Company are sometimes referred to in this Agreement individually as a |
“Party” and collectively as the “Parties”. |
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files |
reports and proxy materials under the Securities Exchange Act of 1934, which are publicly |
available. |
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for |
purposes of engaging in preliminary discussions regarding and evaluating a possible strategic |
merger, acquisition or business combination between the Parties (the “Business Purpose”). |
NOW THEREFORE, the Parties agree as follows: |
1. |
Definition of Confidential Information. |
The term “Confidential Information” means |
any and all information that is or has been received by either Party (the “Recipient”) from |
the other Party (the “Disclosing Party”), or which the Recipient has had access to, during |
the four (4)-month period commencing on the Effective Date (the “Term”), and that is either |
(a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information |
related to the Disclosing Party’s business, which the Receiving Party should reasonably know is |
confidential based on the nature of such information. |
Without limiting the generality of the |
foregoing, Confidential Information shall include the following, whether in tangible or electronic |
form: business plans, customer database information, employee and independent contractor lists, |
internal reports and investigations, research and work in progress, source and object code, |
technical manuals, financial statements and projections, cost summaries and pricing formulae, |
algorithms, confidential filings with any international, federal or state agency, and all other |
information concerning methods of doing business, ideas and inventions (whether or not patentable), |
and data that derives independent economic value, actual or potential, from not being generally |
known to persons who can obtain economic value from its disclosure or use that is the subject of |
reasonable efforts by the Company to maintain its secrecy. |
2. |
Excluded Information. |
Confidential Information shall not include any information that: (a) |
prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or |
available to the Recipient as evidenced by prior written records; (b) through no wrongful act, |
fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; |
(c) is lawfully received by the Recipient from a third party without restriction and without breach |
of this agreement or any other agreement; (d) is approved for public release or use by written |
authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently |
developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is |
disclosed pursuant to the requirement or request of a governmental agency or court of competent |
jurisdiction to the extent such disclosure is required by a valid law, regulation or court order |
and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or |
request in order to permit the Disclosing Party to seek an appropriate protective order or |
exemption from such requirement or request. |
3. |
Non-Disclosure and Confidentiality. |
The Recipient shall not (a) use the Confidential |
Information except for the Business Purpose, or (b) disclose or make the Confidential Information |
available to any person or entity (other than Related Parties, as defined below) without the prior |
written consent of the Disclosing Party. |
Each Party shall take reasonable security precautions to |
protect the Confidential Information, at least as strict as the precautions it takes to protect its |
own confidential and proprietary information of a similar nature. |
Without the prior written |
consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the |
disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal |
advisors, or to its directors, officers, or employees with a demonstrable need to know such |
Confidential Information (each, a “Related Party”, and, collectively, the “Related |
Parties”), provided that any such Related Party either agrees to be bound by this Agreement or |
is already bound by confidentiality obligations no less restrictive than those in this Agreement. |
Each Party shall be responsible for the breach of this Agreement by any Related Party. |
Neither |
Party shall use any Confidential Information received by it to develop a product or service which |
competes with or imitates products of the Disclosing Party or engage in reverse engineering to |
develop similar products or services using the Confidential Information (it being acknowledged and |
understood that both Parties are engaged in the business of beer brewing and that competing beer |
products are regularly independently developed within the beer industry using the same or similar |
raw materials, processes and packaging). |
The Recipient shall prevent commingling of the |
Confidential Information with similar information or material of other third parties. |
The |
obligations of confidentiality and protection under this Agreement shall survive for three (3) |
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