{"id":40763,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/confidentiality-agreement-international-thomson-publishing-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"confidentiality-agreement-international-thomson-publishing-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/confidentiality-agreement-international-thomson-publishing-inc.html","title":{"rendered":"Confidentiality Agreement &#8211; International Thomson Publishing Inc. and Wave Technologies International Inc."},"content":{"rendered":"<pre>                           CONFIDENTIALITY AGREEMENT\n \n                                January 13, 1999\n \nMr. David R. West\nCourse Technology\nOne Main Street\nCambridge, MA 02142\n                                                                         PRIVATE\n                                                                             AND\n                                                                    CONFIDENTIAL\n \nDear Mr. West:\n \n     In connection with the consideration by Course Technology or an affiliate\n(collectively, the 'Buyer') of the possible purchase (the 'Acquisition\nTransaction') of Wave Technologies International, Inc. (together with its\nsubsidiaries, the 'Company'), the Buyer has requested access to certain\ninformation, properties and personnel of the Company.\n \n     In consideration for and as a condition to the Company's furnishing access\nto such information, properties and personnel of the Company as the Company, in\nits sole discretion, agrees to make available to the Buyer, the Buyer agrees as\nfollows:\n \n     1. Confidential and Proprietary Nature of the Information. The Buyer\nacknowledges the confidential and proprietary nature of the Confidential\nInformation (as defined below), agrees to hold and keep the same as provided in\nthis letter agreement, and otherwise agrees to each and every restriction and\nobligation in this letter agreement.\n \n     2. Confidential Information. As used in this letter agreement, the term\n'Confidential Information' means and includes any and all of the following\ninformation, whether provided prior to or after the date of this letter\nagreement:\n \n          (a) trade secrets concerning the business and affairs of the Company,\n     which includes product specifications, data, know-how, processes, designs,\n     sketches, photographs, graphs, drawings, samples, inventions and ideas,\n     past current and planned research and development, current and planned\n     manufacturing, sales or distribution methods and processes, customer lists,\n     current and anticipated customer requirements, price lists, market studies,\n     business plans, and any other information, however documented, that is a\n     trade secret within the meaning of applicable state trade secret law, and\n \n          (b) confidential information concerning the business and affairs of\n     the Company, (which includes historical financial statements, financial\n     projections and budgets, historical and projected sales, capital spending\n     budgets and plans, the names and backgrounds of key personnel, and\n     personnel training techniques and materials that has been or may hereafter\n     be provided or shown to the Buyer by the Company or its employees, agents,\n     advisors or other representatives (the 'Company Representatives') or is\n     otherwise obtained from review of Company documents or property or\n     discussions with Company Representatives by the Buyer or the Buyer's\n     employees, officers, directors, representatives, agents or advisors\n     (including current or prospective financing sources) or representatives of\n     the Buyer's agents and advisors (collectively, 'the Buyer's\n     Representatives'), irrespective of the form of the communication, and also\n     includes all notes, analyses, compilations, studies, summaries or other\n     material prepared by the Buyer or the Buyer's Representatives containing or\n     based, in whole or in part, on any information included in the foregoing.\n \n     Any trade secrets of the Company shall also be entitled to all of the\nprotections and benefits under applicable state trade secret law and any other\napplicable law. If any information which the Company deems to be a trade secret\nis found by a court of competent jurisdiction not to be a trade secret for\npurposes of this letter agreement, then such information shall be eligible to be\nconsidered confidential information in accordance with section 2(b) of this\nletter agreement. In the case of trade secrets, the Buyer hereby waives\n\n \nany requirement that the Company submit proof of the economic value of any trade\nsecret or post a bond or other security.\n \n     3. Restricted Use of Confidential Information. The Buyer agrees that the\nConfidential Information (a) will be kept confidential by the Buyer and the\nBuyer's Representatives and (b) without limiting the foregoing, will not be\ndisclosed by the Buyer or the Buyer's Representatives to any person whomsoever\n(including current or prospective financing sources) except with the specific\nprior written consent of the Company's chief executive officer or chief\nfinancial officer (the 'Company Contact') or except as expressly otherwise\npermitted by the terms of this letter agreement. It is understood that the Buyer\nmay disclose Confidential Information to only those of the Buyer's\nRepresentatives who (i) require such material for the purpose of evaluating a\npossible Acquisition Transaction (but to the extent practicable, only such part\nthat is so required), (ii) are approved in writing by the Company Contact prior\nto any disclosure to them (which approval shall not be unreasonably withheld),\n(iii) are informed by the Buyer of the confidential nature of the Confidential\nMaterial and the obligations of this letter agreement, and (iv) execute a\ncounterpart of this letter agreement, which shall be delivered to the Company,\nthereby evidencing their agreement to be bound by the terms and conditions of\nthis letter agreement as if they were a party to it. The following Buyer's\nRepresentatives that will be involved in the evaluation of any proposed\ntransaction are to be considered to be approved by the Company and not required\nto execute a counterpart of this agreement:\n \n\n                            \n(i)    COURSE TECHNOLOGY\n       Mr. Joe Dougherty          President &amp; Chief Executive Officer\n       Mr. David West             Executive Vice President &amp; Chief Financial Officer\n       Mr. Jay McNamara           Vice President of Business &amp; Operations\n       Mr. Ted Purcell            General Manager, Corporate Learning Division\n       Ms. Marybeth LaFauci       Manager, Financial Planning\n \n(ii)   INTERNATIONAL THOMSON PUBLISHING\n       Mr. Robert Christie        President &amp; Chief Executive Officer\n       Mr. Gene Gage              Senior Vice President, Finance &amp; Operations\n       Mr. Mark L. Wilson         Vice President, Finance &amp; Business Development\n       Mr. Rene Mathis            Vice President, Controller\n       Ms. Bowie Choy             Director, Finance &amp; Business Development\n       Mr. Carl Urbania           Vice President, Chief Information Officer\n       Mr. Steve Mower            Senior Vice President, Human Resources\n \n(iii)  THE THOMSON CORPORATION\n       Mr. Richard Harrington     President &amp; Chief Executive Officer\n       Mr. Dave Shaffer           Chief Operating Officer\n       Mr. Robert Daleo           Chief Financial Officer\n       Mr. Andrew Perrin          Vice President, Business Analysis &amp; Planning\n       Mr. John Carey             Manager of Business Analysis &amp; Planning\n       Mr. Sam Evans              Tax Director\n       Mr. David Hulland          Vice President, Controller\n       Mr. Edward Friedland       Deputy General Counsel\n       Ms. Amy Meltzer Hughson    Assistant General Counsel\n \n(iv)   Derek Goodman and the related support staff of Scott-Macon;\n \n(v)    Executives and the related support staff of PricewaterhouseCoopers;\n \n(vi)   Executives and the related support staff of The Parthenon Group; and\n \n(vii)  any outside counsel deemed necessary by the Buyer.\n\n \n     The Buyer further agrees that the Buyer and the Buyer's Representatives\nwill not use any of the Confidential Information for any reason or purpose other\nthan to evaluate a possible Acquisition Transaction and that the Confidential\nInformation will not be used by the Buyer or the Buyer's Representatives in any\nway\n\n \ndetrimental to the Company (it being acknowledged that any use other than\nevaluation of and negotiating the possible Acquisition Transaction shall be\ndeemed detrimental). The Buyer also agrees to be responsible for enforcing the\nterms of this letter agreement as to the Buyer's Representatives and the\nconfidentiality of the Confidential Information and to take such action, legal\nor otherwise, to the extent necessary to cause them to comply with the terms and\nconditions of this letter agreement and thereby prevent any disclosure of the\nConfidential Information by any of the Buyer's Representatives (including to\ntake all actions that the Buyer would take to protect its own trade secrets and\nconfidential information).\n \n     4. Nondisclosure of Possible Acquisition Transaction. Except as permitted\nby the foregoing paragraph and except as expressly permitted by a definitive\nagreement, if any, entered into by the Buyer for an Acquisition Transaction,\nneither the Buyer nor the Buyer's Representatives will disclose to any person\n(including one who has been provided Confidential Information) the fact that the\nConfidential Information has been made available to the Buyer or the Buyer's\nRepresentatives or that the Buyer or the Buyer's Representatives have inspected\nany portion of the Confidential Information. Except with the prior written\nconsent of the other party and except as expressly permitted by a definitive\nagreement, if any, entered into by the Buyer for an Acquisition Transaction,\nneither the Buyer nor the Buyer's Representatives will disclose the fact that\nany discussions or negotiations are taking place concerning a possible\nAcquisition Transaction, including the status of them.\n \n     5. Company Contact. All requests by the Buyer or the Buyer's\nRepresentatives for Confidential Information, meetings with Company personnel or\nCompany Representatives, or inspection of the Company's properties shall be made\nto the Company Contact.\n \n     6. Exceptions. The foregoing obligations and restrictions do not apply to\nthat part of the Confidential Information that the Buyer demonstrates (a) was or\nbecomes generally available to the public other than as a result of a disclosure\nby the Buyer or the Buyer's Representatives or (b) was available, or becomes\navailable, to the Buyer on a non-confidential basis prior to its disclosure to\nthe Buyer by the Company or a Company Representative, but only if (i) the source\nof such information is not bound by a confidentiality agreement with the Company\nor is not otherwise prohibited from transmitting the information to the Buyer or\nthe Buyer's Representatives by a contractual, legal, fiduciary or other\nobligation and (ii) the Buyer provides the Company with written notice of such\nprior possession either (A) prior to the execution and delivery of this letter\nagreement or (B) if the Buyer later becomes aware (through disclosure to the\nBuyer or otherwise through the Buyer's work on the proposed acquisition) of any\naspect of the Confidential Information as to which the Buyer had prior\npossession, promptly upon the Buyer so becoming aware.\n \n     7. Legal Proceedings. In the event that the Buyer or any of the Buyer's\nRepresentative are requested or become legally compelled (by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil or\ncriminal investigative demand or similar process) or are required by a\nregulatory body to make any disclosure which is prohibited or otherwise\nconstrained by this letter agreement, the Buyer or such Representative, as the\ncase may be, will provide the Company with prompt notice of such request(s) so\nthat it may seek an appropriate protective order or other appropriate remedy. If\nsuch protective order or other remedy is not obtained or the Company grants a\nwaiver hereunder, then the Buyer or such Representative may furnish that portion\n(and only that portion) of the Confidential Information which, in the written\nopinion of counsel reasonably acceptable to the Company, the Buyer is legally\ncompelled or are otherwise required to disclose; provided, however, that the\nBuyer and the Buyer's Representatives shall use reasonable efforts to obtain\nreliable assurance that confidential treatment will be accorded any Confidential\nInformation so disclosed.\n \n     8. Contact With Employees. Without the prior written consent of the Company\nContact (a) neither the Buyer nor those of the Buyer's Representatives will\ninitiate or cause to be initiated (other than through the Company) any\ncommunication with any employee of the Company concerning the Confidential\nInformation or any possible Acquisition Transaction, and (b) the Buyer and the\nBuyer's Representatives will not, for a period of two (2) years after the date\nof this letter agreement, solicit or cause to be solicited the employment of or,\nwithin one (1) year after the date of this letter agreement, employ any person\nwho is now employed by the Company.\n\n \n     9. Insider Trading. The Buyer hereby acknowledges that it is aware and that\nits Representatives have been advised that the United States securities laws\nprohibit any person who has material non-public information about a company from\npurchasing or selling securities of such company.\n \n     10. Hostile Transactions. Buyer agrees that, for a period of one year after\nthe date of this letter agreement, unless such shall have been specifically\ninvited in writing by the Company, neither Buyer nor any of its affiliates (as\nsuch term is defined under the Securities Exchange Act of 1934, as amended (the\n'1934 Act')) or Representatives will in any manner, directly or indirectly, (a)\neffect or seek, offer or propose (whether publicly or otherwise) to effect, or\ncause or participate in or in any way assist any other person to effect or seek,\noffer or propose (whether publicly or otherwise) to effect or participate in,\n(i) any acquisition of any securities (or beneficial ownership thereof) or\nassets of the Company or any of its subsidiaries; (ii) any tender or exchange\noffer, merger or other business combination involving the Company or any of its\nsubsidiaries; (iii) any recapitalization, restructuring, liquidation,\ndissolution or other extraordinary transaction with respect to the Company or\nany of its subsidiaries; or (iv) any 'solicitation' of proxies' (as such terms\nare used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of the Company; (b) form, join or in any\nway participate in a 'group' (as defined under the 1934 Act); (c) otherwise act,\nalong or in concert with others, to seek to control or influence the management,\nboard of directors or policies of the Company; (d) take any action which might\nforce the Company to make a public announcement regarding any of the types of\nmatters set forth in (a) above; or (e) enter into any discussions or\narrangements with any third party with respect to any of the foregoing. The\nBuyer also agrees during such period not to request the Company (or its\ndirectors, officers, employees or agents), directly or indirectly, to amend or\nwaive any provision of this paragraph (including this sentence).\n \n     11. Return of Confidential Information. If the Buyer determines that it\ndoes not wish to proceed with an Acquisition Transaction (and the Buyer shall\npromptly notify the Company Contact of such decision) or if the Company notifies\nthe Buyer that it does not wish the Buyer to consider the Acquisition\nTransaction any further, then (a) the Buyer shall promptly deliver to the\nCompany Contact all documents or other materials furnished by the Company or any\nCompany Representative to the Buyer or the Buyer's Representatives constituting\nConfidential Information, together with all copies thereof in the possession or\nunder the control of the Buyer or the Buyer's Representatives and (b) the Buyer\nshall destroy all documents or other matters that constitute, include or refer\nto Confidential Information in the possession or under the control of the Buyer\nor the Buyer's Representatives, including any summaries or other materials\ngenerated by the Buyer or the Buyer's Representatives that include or refer to\nany part of the Confidential Information without retaining a copy of any such\nmaterial, with any such destruction confirmed by the Buyer in writing to the\nCompany (and such confirmation shall include a list of the destroyed materials).\n \n     12. No Obligation to Negotiate a Definitive Agreement. The Company reserves\nthe right, in its sole discretion, to reject any and all proposals made by the\nBuyer or the Buyer's Representatives with regard to an Acquisition Transaction\nand to terminate discussions and negotiations with the Buyer and the Buyer's\nRepresentatives at any time. Without limiting the foregoing, nothing in this\nletter agreement requires either the Buyer or the Company or its shareholders to\nenter into an Acquisition Transaction or to negotiate such transaction for any\nspecified period of time.\n \n     13. No Representations or Warranties. The Company retains the right to\ndetermine, in its sole discretion, what information, properties and personnel it\nwishes to make available to the Buyer, and neither the Company nor its\nRepresentatives make any representation or warranty (express or implied) as to\nthe completeness or accuracy of the Confidential Information, except pursuant to\nrepresentations and warranties that may be made to the Buyer in a definitive\nagreement for an Acquisition Transaction when, as and if executed and subject to\nsuch limitations and restrictions as may be specified therein. The Buyer also\nagrees that if the Buyer determines to engage in an Acquisition Transaction, the\nBuyer's determination will be based solely on the terms of such definitive\nagreement and on the Buyer's own investigation, analysis and assessment of the\nbusiness to be acquired. Moreover, unless and until such a definitive written\nagreement is entered into, neither the Company nor the Buyer will be under any\nlegal obligation of any kind whatsoever with respect to such an Acquisition\nTransaction except for the matters specifically agreed to in this letter\nagreement or in another written agreement.\n\n \n     14. Remedies. The Buyer hereby agrees to indemnify and hold the Company and\nits officers, directors, shareholders and agents harmless from any damages,\nloss, cost or liability (including legal fees and the cost of enforcing this\nindemnity) arising out of or resulting from any unauthorized use or disclosure\nby the Buyer or the Buyer's Representatives of the Confidential Information or\nother violation of this letter agreement. In addition, because an award of money\ndamages (whether pursuant to the foregoing sentence or otherwise) would be\ninadequate for any breach of this letter agreement by the Buyer or the Buyer's\nRepresentatives and any such breach would cause the Company irreparable harm,\nthe Buyer also agrees that in the event of any breach or threatened breach of\nthis letter agreement, the Company shall also be entitled, without the\nrequirement of posting a bond or other security, to equitable relief, including\ninjunctive relief and specific performance. Such remedies shall not be the\nexclusive remedies for any breach of this letter agreement but shall be in\naddition to all other remedies available at law or equity to the Company.\n \n     15. Miscellaneous.\n \n     (a) Modification and Waiver. The agreements set forth in this letter\nagreement may be modified or waived only by a separate writing signed by the\nCompany and the Buyer expressly modifying or waiving such agreements. No failure\nor delay by the Company in exercising any right, power or privilege hereunder\nshall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any\nright, power or privilege hereunder.\n \n     (b) Person. The term 'person' includes any corporation, company,\npartnership, limited liability company, individual or other entity.\n \n     (c) Severability. The invalidity or unenforceability of any provision of\nthis letter agreement shall not affect the validity or enforceability of any\nother provisions of this letter agreement, which shall remain in full force and\neffect. If any of the covenants or provisions of this letter agreement are\ndetermined to be unenforceable by reason of its extent, duration, scope or\notherwise, then the parties contemplate that the court making such determination\nshall reduce such extent, duration, scope or other provision and enforce them in\ntheir reduced form for all purposes contemplated by this letter agreement.\n \n     (d) Costs. The Buyer agrees that if it is held by any court of competent\njurisdiction to be in violation, breach or nonperformance of any of the terms of\nthis letter agreement, then it shall pay all costs of such action or suit,\nincluding reasonable attorneys' fees.\n \n     (e) Assignment. The Company reserves the right to assign all rights under\nthis letter agreement, including the right to enforce all of its terms, to any\nsuccessor corporation. In the event of an Acquisition Transaction that involves\na sale of assets, the Company currently intends to assign to the Buyer rights to\nenforce the restrictions and other obligations of this letter agreement,\nincluding the right to enforce all of its terms.\n \n     (f) Headings. Headings in this letter agreement are inserted only as a\nmatter of convenience and for reference and in no way define, limit, extend or\ndescribe the scope of this letter agreement for the intent of any of its\nprovisions.\n \n     (g) Jurisdiction and Governing Law. The Buyer agrees and consents to\npersonal jurisdiction and service and venue in any federal or state court within\nthe State of Missouri having subject matter jurisdiction, for the purposes of\nany action, suit or proceeding arising out of or relating to this letter\nagreement. The venue of the court shall be within or, as close as possible to,\nthe St. Louis Metropolitan area. This letter agreement is governed by, and shall\nbe construed in accordance with, the laws of the State of Missouri (except the\nlaws of that jurisdiction that would render such choice of laws ineffective).\n\n \n     Please sign and return one copy of this letter agreement, which will\nconstitute our agreement with respect to its subject matter.\n \n                                          Very truly yours,\n \n                                          WAVE TECHNOLOGIES INTERNATIONAL, INC.\n \n                                          By: \/s\/ KENNETH W. KOUSKY\n                                            ------------------------------------\n                                            Kenneth W. Kousky, President\n \n     DULY EXECUTED and agreed to on January 15, 1999.\n \n                                          INTERNATIONAL THOMSON PUBLISHING, INC.\n                                          d\/b\/a COURSE TECHNOLOGIES\n \n                                          By: \/s\/ MARK L. WILSON\n                                            ------------------------------------\n                                          Name: Mark L. Wilson\n                                              ----------------------------------\n                                          Its: Vice President\n                                            ------------------------------------\n\n \n                                  CONFIDENTIAL\n \nJanuary 22, 1999\nVIA FAX:\nMr. Kenneth W. Kousky\nPresident\nWave Technologies International, Inc.\n10845 Olive Boulevard, Ste. 250\nSt. Louis, MO\nDear Mr. Kousky:\n \n     First, I would like to thank you for sending back to me a countersigned\nconfidentiality agreement ('Confidentiality Agreement') so speedily.\nUnfortunately, however, Course Technology cannot go forward and review any\ninformation of Wave Technologies International, Inc. ('Company') without\namending Section 8 of the Confidentiality Agreement.\n \n     Upon further review, we realized that this provision should only apply to\nthe ITP Group, Course Technology and TTC Corporate in Stamford, CT who will have\naccess to the information. Since Thomson is a $6 billion corporation consisting\nof in excess of 86 independent companies, we cannot bind all of these companies\nwithout disclosing the details of this transaction to such companies. Other than\nCourse Technology, the ITP Group and TTC Corporate, no other Thomson company\nhas, or will have, knowledge of the proposed acquisition. We recognize we are\nbound to not disclose information regarding this transaction to any third party\nincluding affiliated Thomson companies. We intend to use the information\nprovided ONLY to determine if a proposed transaction would benefit our\ncompanies.\n \n     Accordingly, Section 8 shall only apply to Course Technology, other\ncompanies of the ITP Group, TTC Corporate and such other Thomson company or\nindividual that receives information pursuant to the Confidentiality Agreement,\nor that receives encouragement or influence by one or more of such companies, in\nconnection with the hiring of a Company employee, as well as their respective\nsuccessors, assigns and agents.\n \n     Until we confirm our agreement, please do not send us, or our\nrepresentatives, any Confidential Information.\n \n                                          Very truly yours,\n \n                                          By: \/s\/ EDWARD A. FRIEDLAND\n                                            Edward A. Friedland\n                                            Vice President\nACCEPTED AND AGREED:\n \n\/s\/ KENNETH W. KOUSKY\nKenneth W Kousky\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9052],"corporate_contracts_industries":[9468],"corporate_contracts_types":[9553,9558],"class_list":["post-40763","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-thomson-corp","corporate_contracts_industries-media__other","corporate_contracts_types-corporate","corporate_contracts_types-corporate__nondisclose"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40763","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40763"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40763"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40763"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40763"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}