Exhibit 99.1
CONFIDENTIAL
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
Recipient: ▇▇▇▇▇▇▇▇▇▇ Investment Management, Inc.,
for itself and its affiliated entities,
including the D3 Family Funds, L.P.
Address: ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇ Email:______________________
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax:______________________
1. PURPOSE
This Agreement is by and between ▇▇▇▇▇▇ Automation, Inc., having offices
at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇"), and the
Parties identified above (referred to collectively as "Recipient"), and is
effective as of the date of the last signature below. ▇▇▇▇▇▇ possesses
certain information, particularly as described in Section 3 below, which
it considers to be proprietary and confidential, and is disclosing such
information to Recipient.
2. CONSIDERATION
In consideration of any and all disclosures by ▇▇▇▇▇▇ of such information
to Recipient, Recipient agrees to be bound by the terms of this
Confidentiality and Nondisclosure Agreement ("Agreement").
3. CONFIDENTIAL INFORMATION DEFINED
As used in this Agreement, "Confidential Information" means any
information disclosed, either orally or in writing, by ▇▇▇▇▇▇ to Recipient
constituting material non-public information concerning the Company, its
securities, its business and financial plans and prospects, and its
governance and management activities, including the activities and
composition of the Company's Board of Directors and any Committee thereof,
whether such information is provided in written or oral fashion.
4. DUTIES OF RECIPIENT
Recipient shall hold the Confidential Information provided hereunder in
confidence. Recipient shall: (i) restrict its use of Confidential
Information to purposes commensurate with Recipient's ownership of ▇▇▇▇▇▇'
common stock; (ii) restrict disclosure of Confidential Information to only
those employees or subcontractors of Recipient who have a need to know in
connection with such purposes; and (iii) bind such employees or
subcontractors in writing to the extent that Recipient is bound hereunder.
Recipient shall use at least the same reasonable efforts to protect the
Confidential Information as are used to protect its own confidential and
proprietary information, but always at no less than a reasonable degree of
care, and shall be responsible for any disclosures or use by employees or
subcontractors of Recipient not authorized hereunder.
Page 1 of 4
CONFIDENTIAL
Recipient agrees that, until forty-eight hours following the filing with
the Securities and Exchange Commission of the proxy statement pertaining
to ▇▇▇▇▇▇' 2006 Annual Meeting of Stockholders, Recipient will not: (a)
acquire, agree to acquire or make any proposal to acquire, directly or
indirectly, any securities or property of ▇▇▇▇▇▇ or any of its
subsidiaries, or any rights or options to acquire any such securities or
property; (b) effect any transaction involving ▇▇▇▇▇▇ common stock, any
other security of ▇▇▇▇▇▇ or any security whose value is dependent, in
whole or in part, on the value of ▇▇▇▇▇▇ common stock or any other
security of ▇▇▇▇▇▇, (c) propose to enter into, directly or indirectly, any
merger or business combination involving ▇▇▇▇▇▇ or any of its subsidiaries
or divisions; (d) otherwise act, alone or in concert with others, to seek
to control or influence the management, board of directors or policies of
▇▇▇▇▇▇ (it being understood that private communications and actions by
Recipient not acting in concert with others with ▇▇▇▇▇▇ or its directors
or officers are exempt from this clause (d)); (e) enter into any contract,
arrangement or understanding with any person or entity with respect to any
securities of ▇▇▇▇▇▇ or any subsidiary of ▇▇▇▇▇▇; (f) disclose any
intention, plan or arrangement inconsistent with the foregoing; or (g)
advise, assist or encourage any other person or entity in connection with
any of the foregoing.
Recipient acknowledges that it is aware of restrictions imposed by
applicable securities laws restricting trading in securities while in
possession of material non-public information received from the issuer of
such securities and on communication of such information when it is
reasonably foreseeable that the Recipient is likely to trade such
securities in reliance on such information.
5. EXCEPTIONS
Recipient's obligations hereunder shall not apply to information which
Recipient can demonstrate:
(i) was known to Recipient prior to the disclosure by ▇▇▇▇▇▇;
(ii) is or becomes part of the public domain without any act or failure
to act by Recipient;
(iii) is lawfully obtained by Recipient from a third party who is under no
obligation of confidentiality;
(iv) is independently developed by Recipient without reference to
Information received hereunder;
(v) is approved for release by ▇▇▇▇▇▇ in writing; or
(vi) is disclosed pursuant to court order or as otherwise required by
law, after giving Discloser written notice of such required
disclosure and after assisting Discloser in its reasonable efforts
to prevent or limit such disclosure.
6. DISPOSAL/RETURN OF CONFIDENTIAL INFORMATION
Recipient shall return or destroy any tangible Confidential Information it
has received hereunder, and all copies thereof, at ▇▇▇▇▇▇' request or upon
Recipient having no further need of such Confidential Information and
copies for the purposes described in Section 4(i) above. Recipient will
provide ▇▇▇▇▇▇ a written certification of an officer of the Recipient that
it has done so.
7. NONDISCLOSURE OF DISCUSSION
Page 2 of 4
CONFIDENTIAL
Unless otherwise required by law, Recipient, without the prior written
consent of ▇▇▇▇▇▇, ▇▇▇▇ not disclose to any person either the fact that
discussions have taken or are taking place concerning ▇▇▇▇▇▇
8. REMEDIES
Recipient acknowledges that the unauthorized use or disclosure of the
Confidential Information would cause irreparable harm to ▇▇▇▇▇▇.
Accordingly, Recipient agrees that ▇▇▇▇▇▇ will have the right to obtain an
immediate injunction against any breach or threatened breach of this
Agreement without posting a bond or other undertaking, as well as the
right to pursue any and all other rights and remedies available at law or
in equity for such breach.
9. NO LICENSE
All information delivered by ▇▇▇▇▇▇ to the Recipient remains the property
of ▇▇▇▇▇▇. It is understood that the disclosure of Confidential
Information to Recipient shall not be operative in any way to grant any
license of any kind to Recipient.
10. COMPLIANCE WITH TECHNOLOGY TRANSFER REGULATIONS
Recipient will not knowingly export or re-export, directly or indirectly
through Recipient's affiliates, licensees, or subsidiaries, any portion of
the Confidential Information provided hereunder or under any ancillary
agreements hereto in violation of any portion of any applicable export
rules or regulations.
11. MISCELLANEOUS
A. This Agreement will be binding upon and inure to benefit of the
parties hereto and their respective successors and assigns.
B. This Agreement does not create any partnership or agency
relationship.
C. Any terms of this Agreement may be amended or waived only by an
instrument in writing signed by the party against which enforcement
of the amendment or waiver is sought.
D. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, excluding its
conflicts of laws principles.
E. If any provision of this Agreement shall be found to be invalid or
unenforceable, the other provisions of this Agreement shall not be
affected thereby, and any such invalid or unenforceable provision
shall be reformed so as to be valid and enforceable to the full
extent permitted by law.
F. This Agreement contains the entire understanding of the parties with
respect to the matters contained herein and supersedes all prior
agreements, understandings and communications, oral or written,
between the parties regarding the subject matter of this Agreement.
This Agreement is not, however, intended to limit any rights that
▇▇▇▇▇▇ may have under trade secret, copyright, patent or other laws
that may apply to the subject matter of this Agreement both during
and after the term of this Agreement.
Page 3 of 4
CONFIDENTIAL
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
under seal by their duly authorized officers or representatives.
RECIPIENT ▇▇▇▇▇▇ AUTOMATION, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -------------------------------------
Authorized Signature Authorized Signature
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -------------------------------------
Name
President SVP, Gen Counsel & Secretary
------------------------------- -------------------------------------
Title Title
1/5/2006 January 5, 2006
------------------------------- -------------------------------------
Date Date
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ Cara Denver
-------------------------------
Cara Denver
Page 4 of 4