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MUTUAL CONFIDENTIALITY AGREEMENT BETWEEN OUR INTERNET and MELOTHE INC. This Mutual Confidentiality Agreement dated as of ___________, 2008 (the “Agreement”) is entered into by and among ________________, an _________ corporation, (together with its subsidiaries, individually and collectively the “Company”) and Melothe Incorporated, a Florida corporation.
1. During the course of discussions ("Discussions") of a
possible negotiated transaction or business relationship, or in the course of a business relationship arising from or pursuant to such Discussions, between Melothe and Our Internet (“Transaction”), each of us will or may provide and make available to the other certain materials and/or information in written or verbal form (herein collectively referred to as the "Confidential Material"). As a condition to the Confidential Material being furnished by either one of us ("Providing Party") to the other ("Receiving Party") and its directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), or any of their respective affiliates with a need to know (collectively, "Representatives"), the Receiving Party agrees that any such equipment, materials, software or information, whether provided in written or verbal form, concerning or provided by the Providing Party (whether prepared by the Providing Party, its advisors or otherwise and irrespective of the form of communication) which is furnished to the Receiving Party or to its Representatives now or in the future by or on behalf of the Providing Party will be treated in accordance with this Agreement.
2. The term "Confidential Material" also shall be deemed
to include, without limitation, all equipment, software, notes, analyses, compilations, studies, interpretations or any other documents, materials or written or verbal information prepared by the Receiving Party or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the equipment, materials, software, or written or verbal information furnished by the Providing Party to the Receiving Party or its Representatives. The term "Confidential Material" does not include information which (i) is or becomes generally available to the public, other than as a result of a disclosure by the Receiving Party or its Representatives, (ii) was within the Receiving Party's possession, as shown by its written records, prior to its being furnished to the Receiving Party by or on behalf of the Providing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Providing Party or any other party with respect to such information, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Providing Party or any of its Representatives, provided that such source is not bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Providing Party or any other party with respect to such information, or (iv) was
independently developed by the Receiving Party without reference to, derivation from, or use of the Confidential Material, provided such independent development can be proven by the Receiving Party by written records.
3. The Receiving Party agrees that it and its
Representatives shall use the Confidential Material solely for the purpose of the Discussions and evaluating a Transaction, or in the course of a business relationship arising from or pursuant to such Discussions, and for no other purpose whatsoever, including, without limitation, any competitive purpose, that the Confidential Material will be kept confidential by the Receiving Party and its Representatives, and that neither the Receiving Party nor any of its Representatives will disclose any of the Confidential Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Receiving Party's Representatives who have a genuine need to know such information for the sole purpose of the Discussions and evaluating a Transaction or for the purpose of performing responsibilities under a business relationship arising from or pursuant to such Discussions, and who are provided with a copy of this Agreement and, in the case of Representatives who are not employees, officers or directors of the Receiving Party, agree in writing to be bound by the terms hereof to the same extent as if they were parties hereto. Each of Company and Melothe shall be responsible for any breach of this Agreement by any of its respective Representatives and each agrees, at its sole expense, to take all reasonable measures to restrain its respective Representatives from prohibited or unauthorized disclosure or use of the Confidential Material.
4. The provisions contained in the immediately preceding paragraph requiring that the Confidential Material be kept confidential shall expire seven years from the date hereof or upon issuance of United States Letters Patent with respect thereto, whichever is earlier.
5. In addition, without the prior written consent of the
Providing Party, neither the Receiving Party nor any of its Representatives will disclose to any other person that the Confidential Material has been made available to them, that discussions or negotiations are taking place concerning a possible or actual business relationship, agreement or Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, that the Receiving Party or its Representatives may make such disclosure if outside counsel has provided an opinion that such disclosure must be made by the Receiving Party or its Representatives in order that it or they not commit a violation of law or stock exchange policy or rule. The term "person" as used in this Agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.
under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
6. In the event that the Receiving Party or any of its
Representatives are requested or required (by interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Material, they shall provide the Providing Party with immediate written notice of any such request or requirement so that the Providing Party may seek a protective order or other appropriate remedy, or, if it so elects, waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Providing Party, the Receiving Party or any of its Representatives are nonetheless, in the written opinion of counsel, legally compelled to disclose Confidential Material pursuant to such process or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its Representative may, without liability hereunder, disclose only that portion of the Confidential Material which such counsel advises the Receiving Party is legally required to be disclosed (and only to such persons as such counsel advises the Receiving Party are legally required), provided that the Receiving Party exercise its best efforts to preserve the confidentiality of the Confidential Material, including, without limitation, by cooperating with the Providing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Material.
7. If either Party decides not to proceed with a
Transaction, prompt written notice to the other party of that decision shall be given. In that case, or at any time upon the request of any Providing Party for any reason, the Receiving Party will promptly deliver to the Providing Party all Confidential Material (and all copies thereof) furnished to the Receiving Party or its Representatives by or on behalf of the Providing Party. In the event of such a decision or request, all other Confidential Material prepared by the Receiving Party or its Representatives shall be destroyed and no copy thereof shall be retained. Notwithstanding the return or destruction of the Confidential Material, the Receiving Party and its Representatives will continue to be bound by its obligations hereunder.
8. Neither the Providing Party nor any of its
Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Material. Neither Providing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its Representatives relating to or resulting from the use of the Confidential Material or any errors therein or omissions therefrom.
9. Each party acknowledges that its respective Representatives have been advised that the United States securities laws prohibit any person who has received material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of the Providing Party or any of its affiliates on the basis of or while in knowing possession of such information or from communicating such information to any other person
10. Our Internet and Melothe understand and agree that
no contract or Agreement providing for any Transaction involving Our Internet and Melothe shall be deemed to exist between Our Internet and Melothe unless and until a final definitive agreement has been executed and delivered. Our Internet and Melothe also agree that unless and until a final definitive agreement regarding a Transaction between Our Internet and Melothe has been executed and delivered, neither Our Internet nor Melothe will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein.
11.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the nonbreaching party shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity, including recovery of reasonable attorneys’ fees and expenses.
12.
This Agreement will be governed and construed in accordance with the laws of the State of Florida applicable to contracts made, executed, delivered and performed wholly within the State of Florida, without regard to any applicable conflicts of law. Each of the parties hereby (a) submits to the jurisdiction of any State and Federal courts sitting in the State of Florida with respect to matters arising out of or relating hereto, (b) agrees that all claims with respect to such matters may be heard and determined in an action or proceeding in such State or Federal court, (c) waives the defense of an inconvenient forum, and (d) agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
13. Without the consent of the other party, each party
agrees not to initiate or maintain contact with any officer, director, employee or agent of the other party or its subsidiaries regarding its business, operations, prospects or finances (except for those contacts made in the ordinary course of business). Our Internet agrees that all (a) contacts by it or its Representatives with Melothe regarding the Confidential Material or the Transaction, (b) requests for additional Confidential Material, (c) requests for facility tours or management meetings and (d) discussions or questions regarding procedures shall be made through Marc Farinella or his designee. Melothe agrees that all (a) contacts by it or its Representatives with Our Internet regarding the Confidential Material or the Transaction, (b) requests for additional Confidential Material, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures shall be made through
2
[__________________] or his designee. 14.
If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this Agreement, and such invalid provision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.
15.
Notwithstanding anything herein to the contrary, any party to this Agreement (and any employee, representative or other agent of any party to this Agreement) may disclose to any and all persons only the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure; provided, however, that such disclosure may not be made (A) until the earlier of (x) the date of the public announcement of discussions relating to the Transaction, (y) the date of the public announcement of the Transactions and (z) the date of the execution of an agreement (with or without conditions) to enter into the Transaction and (B) to the extent required to be kept confidential to comply with any applicable federal or state securities laws.
16.
This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties with respect to the subject matter hereof and all prior representations and understandings, whether oral or written. All additions or modifications to this Agreement must be in writing signed by both parties. No failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement is nonassignable without the prior written consent of the parties.
Title: President
Our INTERNET By: Name: Title: Address:
MELOTHE INC. By: Name: Syed Doha
3
1. During the course of discussions ("Discussions") of a
possible negotiated transaction or business relationship, or in the course of a business relationship arising from or pursuant to such Discussions, between Melothe and Our Internet (“Transaction”), each of us will or may provide and make available to the other certain materials and/or information in written or verbal form (herein collectively referred to as the "Confidential Material"). As a condition to the Confidential Material being furnished by either one of us ("Providing Party") to the other ("Receiving Party") and its directors, officers, employees, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), or any of their respective affiliates with a need to know (collectively, "Representatives"), the Receiving Party agrees that any such equipment, materials, software or information, whether provided in written or verbal form, concerning or provided by the Providing Party (whether prepared by the Providing Party, its advisors or otherwise and irrespective of the form of communication) which is furnished to the Receiving Party or to its Representatives now or in the future by or on behalf of the Providing Party will be treated in accordance with this Agreement.
2. The term "Confidential Material" also shall be deemed
to include, without limitation, all equipment, software, notes, analyses, compilations, studies, interpretations or any other documents, materials or written or verbal information prepared by the Receiving Party or its Representatives to the extent they contain, reflect or are based upon, in whole or in part, the equipment, materials, software, or written or verbal information furnished by the Providing Party to the Receiving Party or its Representatives. The term "Confidential Material" does not include information which (i) is or becomes generally available to the public, other than as a result of a disclosure by the Receiving Party or its Representatives, (ii) was within the Receiving Party's possession, as shown by its written records, prior to its being furnished to the Receiving Party by or on behalf of the Providing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Providing Party or any other party with respect to such information, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Providing Party or any of its Representatives, provided that such source is not bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Providing Party or any other party with respect to such information, or (iv) was
independently developed by the Receiving Party without reference to, derivation from, or use of the Confidential Material, provided such independent development can be proven by the Receiving Party by written records.
3. The Receiving Party agrees that it and its
Representatives shall use the Confidential Material solely for the purpose of the Discussions and evaluating a Transaction, or in the course of a business relationship arising from or pursuant to such Discussions, and for no other purpose whatsoever, including, without limitation, any competitive purpose, that the Confidential Material will be kept confidential by the Receiving Party and its Representatives, and that neither the Receiving Party nor any of its Representatives will disclose any of the Confidential Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Receiving Party's Representatives who have a genuine need to know such information for the sole purpose of the Discussions and evaluating a Transaction or for the purpose of performing responsibilities under a business relationship arising from or pursuant to such Discussions, and who are provided with a copy of this Agreement and, in the case of Representatives who are not employees, officers or directors of the Receiving Party, agree in writing to be bound by the terms hereof to the same extent as if they were parties hereto. Each of Company and Melothe shall be responsible for any breach of this Agreement by any of its respective Representatives and each agrees, at its sole expense, to take all reasonable measures to restrain its respective Representatives from prohibited or unauthorized disclosure or use of the Confidential Material.
4. The provisions contained in the immediately preceding paragraph requiring that the Confidential Material be kept confidential shall expire seven years from the date hereof or upon issuance of United States Letters Patent with respect thereto, whichever is earlier.
5. In addition, without the prior written consent of the
Providing Party, neither the Receiving Party nor any of its Representatives will disclose to any other person that the Confidential Material has been made available to them, that discussions or negotiations are taking place concerning a possible or actual business relationship, agreement or Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, that the Receiving Party or its Representatives may make such disclosure if outside counsel has provided an opinion that such disclosure must be made by the Receiving Party or its Representatives in order that it or they not commit a violation of law or stock exchange policy or rule. The term "person" as used in this Agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.
under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
6. In the event that the Receiving Party or any of its
Representatives are requested or required (by interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Material, they shall provide the Providing Party with immediate written notice of any such request or requirement so that the Providing Party may seek a protective order or other appropriate remedy, or, if it so elects, waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Providing Party, the Receiving Party or any of its Representatives are nonetheless, in the written opinion of counsel, legally compelled to disclose Confidential Material pursuant to such process or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its Representative may, without liability hereunder, disclose only that portion of the Confidential Material which such counsel advises the Receiving Party is legally required to be disclosed (and only to such persons as such counsel advises the Receiving Party are legally required), provided that the Receiving Party exercise its best efforts to preserve the confidentiality of the Confidential Material, including, without limitation, by cooperating with the Providing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Material.
7. If either Party decides not to proceed with a
Transaction, prompt written notice to the other party of that decision shall be given. In that case, or at any time upon the request of any Providing Party for any reason, the Receiving Party will promptly deliver to the Providing Party all Confidential Material (and all copies thereof) furnished to the Receiving Party or its Representatives by or on behalf of the Providing Party. In the event of such a decision or request, all other Confidential Material prepared by the Receiving Party or its Representatives shall be destroyed and no copy thereof shall be retained. Notwithstanding the return or destruction of the Confidential Material, the Receiving Party and its Representatives will continue to be bound by its obligations hereunder.
8. Neither the Providing Party nor any of its
Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Material. Neither Providing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its Representatives relating to or resulting from the use of the Confidential Material or any errors therein or omissions therefrom.
9. Each party acknowledges that its respective Representatives have been advised that the United States securities laws prohibit any person who has received material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of the Providing Party or any of its affiliates on the basis of or while in knowing possession of such information or from communicating such information to any other person
10. Our Internet and Melothe understand and agree that
no contract or Agreement providing for any Transaction involving Our Internet and Melothe shall be deemed to exist between Our Internet and Melothe unless and until a final definitive agreement has been executed and delivered. Our Internet and Melothe also agree that unless and until a final definitive agreement regarding a Transaction between Our Internet and Melothe has been executed and delivered, neither Our Internet nor Melothe will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein.
11.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement by either party or any of its Representatives and that the nonbreaching party shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity, including recovery of reasonable attorneys’ fees and expenses.
12.
This Agreement will be governed and construed in accordance with the laws of the State of Florida applicable to contracts made, executed, delivered and performed wholly within the State of Florida, without regard to any applicable conflicts of law. Each of the parties hereby (a) submits to the jurisdiction of any State and Federal courts sitting in the State of Florida with respect to matters arising out of or relating hereto, (b) agrees that all claims with respect to such matters may be heard and determined in an action or proceeding in such State or Federal court, (c) waives the defense of an inconvenient forum, and (d) agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
13. Without the consent of the other party, each party
agrees not to initiate or maintain contact with any officer, director, employee or agent of the other party or its subsidiaries regarding its business, operations, prospects or finances (except for those contacts made in the ordinary course of business). Our Internet agrees that all (a) contacts by it or its Representatives with Melothe regarding the Confidential Material or the Transaction, (b) requests for additional Confidential Material, (c) requests for facility tours or management meetings and (d) discussions or questions regarding procedures shall be made through Marc Farinella or his designee. Melothe agrees that all (a) contacts by it or its Representatives with Our Internet regarding the Confidential Material or the Transaction, (b) requests for additional Confidential Material, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures shall be made through
2
[__________________] or his designee. 14.
If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this Agreement, and such invalid provision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.
15.
Notwithstanding anything herein to the contrary, any party to this Agreement (and any employee, representative or other agent of any party to this Agreement) may disclose to any and all persons only the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure; provided, however, that such disclosure may not be made (A) until the earlier of (x) the date of the public announcement of discussions relating to the Transaction, (y) the date of the public announcement of the Transactions and (z) the date of the execution of an agreement (with or without conditions) to enter into the Transaction and (B) to the extent required to be kept confidential to comply with any applicable federal or state securities laws.
16.
This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties with respect to the subject matter hereof and all prior representations and understandings, whether oral or written. All additions or modifications to this Agreement must be in writing signed by both parties. No failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement is nonassignable without the prior written consent of the parties.
Title: President
Our INTERNET By: Name: Title: Address:
MELOTHE INC. By: Name: Syed Doha
3
