EXHIBIT 2.6
CONFIDENTIAL DISCLOSURE AGREEMENT
BETWEEN
AMBASSADORS INTERNATIONAL, INC.
AND
AMBASSADORS GROUP, INC.
EFFECTIVE AS OF
_________________, 2001
CONFIDENTIAL DISCLOSURE AGREEMENT
This Confidential Disclosure Agreement (this "Agreement") is entered into
as of __________, 2001, between Ambassadors International, Inc., a Delaware
corporation ("Ambassadors"), and Ambassadors Group, Inc., a Delaware corporation
("Education"). Ambassadors and Education are sometimes referred to herein
individually as a "party" or collectively as the "parties."
WHEREAS, Ambassadors currently owns all of the issued and outstanding
capital stock of Education; and,
WHEREAS, the Board of Directors of Ambassadors has determined that it is
appropriate and desirable to separate the business of the parties (the
"Separation") and to distribute all of the shares of Education common stock pro
rata to the holders of Ambassadors common stock (the "Distribution"), all on the
terms and conditions contemplated by a Master Separation and Distribution
Agreement dated _____________, 2001 (the "Separation Agreement");
WHEREAS, in connection with the Separation and Distribution, the parties
wish to make certain agreements regarding protection of their Confidential
Information.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following terms shall
have the following meanings. Any capitalized terms which are not defined in this
Agreement shall have the meaning assigned to them in the Separation Agreement.
1.1. "ANCILLARY AGREEMENTS" means the items and agreements listed in
Section 2.1 of the Separation Agreement and all agreements and documents
contemplated by such agreements.
1.2. "CONFIDENTIAL INFORMATION" means any and all financial, technical,
commercial or other information of Ambassadors or Education, as
appropriate (whether written or oral), including, without limitation, all
information, notes, client lists and records, reports, analyses,
financial statements, compilations, studies, forms, business or
management methods, marketing data, fee schedules, information technology
systems and programs, projections, forecasts or trade secrets of
Ambassadors or Education, as applicable, whether or not such Confidential
Information is disclosed or otherwise made available to one party by the
other party pursuant to this Agreement. Confidential Information shall
also include the terms and provisions of this Agreement and any
transactions consummated or documents executed by the parties pursuant to
this Agreement. Confidential Information does not include any information
that (i) is or becomes generally available to and known by the public
(other than as a result of an unpermitted disclosure directly or
indirectly by the Receiving Party or its affiliates, advisors or
representatives); (ii) is or becomes available to the Receiving Party on
a nonconfidential basis from a source other than the Disclosing Party or
its affiliates, advisors or representatives, provided that such source is
not and was not bound by a confidentiality agreement with or other
obligation of secrecy to the Disclosing Party; or (iii) has already been
developed, or is hereafter independently acquired or developed, by the
Receiving Party without violating any confidentiality agreement with or
other obligation of secrecy to the Disclosing Party.
1.3. "CONFIDENTIALITY PERIOD" means five years after either (i) the
Separation Date with respect to Confidential Information of the
Disclosing Party that is known to or in the possession of the Receiving
Party as of the Separation Date or (ii) the date of disclosure with
respect to Confidential Information that is disclosed by the Disclosing
Party to the Receiving Party after the Separation Date.
1.4. "DISCLOSING PARTY" means the party owning or disclosing the relevant
Confidential Information.
1.5. "DISPUTES" has the meaning set forth in Section 6.7 of the
Separation Agreement.
1.6. "DISTRIBUTION DATE" has the meaning set forth in Section 6.10 of the
Separation Agreement.
1.7. "PERSON" has the meaning set forth in Section 6.21 of the Separation
Agreement.
1.8. "RECEIVING PARTY" means the non-owning party or recipient of the
relevant Confidential Information.
1.9. "SEPARATION AGREEMENT" means the Master Separation and Distribution
Agreement dated ___________, 2001 between the parties.
1.10. "SEPARATION DATE" has the meaning set forth in Section 6.25 of the
Separation Agreement.
1.11. "SUBSIDIARY" has the meaning set forth in Section 6.26 of the
Separation Agreement.
1.12. "THIRD PARTY" means a Person other than Ambassadors, its
Subsidiaries and their respective employees and Education, its
Subsidiaries and their respective employees.
1.13. "TRANSACTION AGREEMENTS" means the Separation Agreement and the
Ancillary Agreements.
2. CONFIDENTIALITY.
2.1. CONFIDENTIALITY AND NON-USE OBLIGATIONS. During the Confidentiality
Period, the Receiving Party shall (i) protect the Confidential
Information of the Disclosing Party by using the same degree of care, but
no less than a reasonable degree of care, to prevent the unauthorized
use, dissemination, or publication of the Confidential Information as the
Receiving Party uses to protect its own Confidential Information of a
like nature, (ii) not use such Confidential Information in violation of
any use restriction in any Transaction Agreement, and (iii) not disclose
such Confidential Information to any Third Party, except as expressly
permitted under this Agreement, in the Transaction Agreements or in any
other agreements entered into between the parties in writing, without
prior written consent of the Disclosing Party.
2.2. COMPELLED DISCLOSURE. If the Receiving Party or any of its
respective Subsidiaries believes that it will be compelled by a court or
other authority to disclose Confidential Information of the Disclosing
Party, it shall (i) give the Disclosing Party prompt and timely written
notice so that the Disclosing Party may take steps to oppose such
disclosure, but in any event the Receiving Party shall not be prohibited
from complying with such requirement and (ii) cooperate with the
Disclosing Party in its attempts to oppose such disclosure, provided that
such opposition is reasonable in light of applicable law or regulation.
If the Receiving Party complies with the above, it shall not be
prohibited from complying with such requirements to disclose, but shall
cooperate with the Disclosing Party to take all reasonable steps to make
such disclosure subject to a suitable protective order or otherwise
prevent unrestricted or public disclosure.
2.3. NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall
restrict the Disclosing Party from using, disclosing, or disseminating
its own Confidential Information in any way provided that, in so doing,
it does not use, disclose or disseminate any Confidential Information of
the Receiving Party.
2.4. NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict
reassignment of the Receiving Party's employees.
2.5. THIRD PARTY RESTRICTIONS. Nothing in the Agreement supersedes any
restriction imposed by Third Parties on their Confidential Information,
and there is no obligation on the Disclosing Party to conform Third Party
agreements to the terms of this Agreement.
3. WARRANTY DISCLAIMER. Each party acknowledges and agrees that all Confidential
Information is provided on an "as is, where is" basis and that neither party nor
any of its Subsidiaries has made or will make any warranty whatsoever with
respect to confidential information, express, implied or statutory, including,
without limitation, any implied warranties of merchantability, fitness for a
particular purpose, title, enforceability or non-infringement.
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4. TERM AND TERMINATION.
4.1. TERM. This Agreement shall remain in full force and effect unless
and until terminated by the mutual written agreement of the parties.
4.2. SURVIVAL. Articles 2 (with respect to Confidential Information
acquired or disclosed prior to the date of termination), 3, 5, and 6
shall survive any termination of this Agreement.
5. DISPUTE RESOLUTION. Resolution of any and all Disputes arising from or in
connection with this Agreement shall be exclusively governed by and settled in
accordance with the provisions of this Article 5.
5.1. NEGOTIATION. The parties shall make a good faith attempt to resolve
any Dispute arising out of or relating to this Agreement through informal
negotiation between appropriate representatives from each of Ambassadors
and Education. If at any time either party feels that such negotiations
are not leading to a resolution of the Dispute, such party may send a
notice to the other party describing the Dispute and requesting a meeting
of the senior executives from each party. Within ten business days after
such notice of a Dispute is given, each party shall select appropriate
senior executives (e.g., director or V.P. level) of each party who shall
have the authority to resolve the matter and shall meet to attempt in
good faith to negotiate a resolution of the Dispute prior to pursuing
other available remedies. During the course of negotiations under this
Section 5.1, all reasonable requests made by one party to the other for
information, including requests for copies of relevant documents, will be
honored. The specific format for such negotiations will be left to the
discretion of the designated negotiating senior executives but may
include the preparation of agreed upon statements of fact or written
statements of position furnished to the other party. In the event that
any Dispute arising out of or related to this Agreement is not settled by
the parties within 30 days after the first meeting of the negotiating
senior executives, either party may commence litigation with respect to
the Dispute. However, except as provided below in Section 5.2, neither
party shall commence litigation against the other party to resolve the
Dispute (i) until the parties try in good faith to settle the Dispute by
negotiation for at least 30 days after the first meeting of the
negotiating senior executives or (ii) until 40 days after notice of a
Dispute is given by either party to the other party, whichever occurs
first.
5.2. PROCEEDINGS. Any Dispute regarding the following is not required to
be negotiated prior to seeking relief from a court of competent
jurisdiction: breach of any obligation of confidentiality; infringement,
misappropriation, or misuse of any intellectual property right; or any
other claim where interim relief from the court is sought to prevent
serious and irreparable injury to a party. However, the parties shall
make a good faith effort to negotiate such Dispute, according to Section
5.1, while such court action is pending.
5.3. CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, the parties will continue to provide service and honor all other
commitments under this Agreement and each Ancillary Agreement during the
course of dispute resolution pursuant to the provisions of this Article 5
with respect to all matters not subject to such dispute, controversy or
claim.
6. MISCELLANEOUS PROVISIONS.
6.1. AUTHORITY. Each of the parties hereto represents to the other that
(i) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (ii) the execution, delivery
and performance of this Agreement by it have been duly authorized by all
necessary corporate or other actions, (iii) it has duly and validly
executed and delivered this Agreement, and (iv) this Agreement is a
legal, valid and binding obligation, enforceable against it in accordance
with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and general equity principles.
6.2. AMENDMENT AND EXECUTION. The Boards of Directors of Education and
Ambassadors may mutually agree to amend the provisions of this Agreement
at any time or times, for any reason, either prospectively or
retroactively,
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to such extent and in such manner as the Boards mutually deem advisable.
Each Board may delegate its amendment power, in whole or in part, to one
or more Persons or committees as it deems advisable. No change or
amendment will be made to this Agreement, except by an instrument in
writing signed by authorized individuals. This Agreement and amendments
hereto shall be in writing and executed on behalf of Ambassadors and
Education by their respective duly authorized officers and
representatives.
6.3. COUNTERPARTS. This Agreement, including any attachments hereto and
the other documents referred to herein, may be executed via facsimile or
otherwise in counterparts, each of which shall be deemed to be an
original but all of which shall constitute one and the same agreement.
6.4. EFFECTIVENESS. All covenants and agreements of the parties contained
in this Agreement shall be subject to and conditioned upon the
Distribution becoming effective.
6.5. EFFECT IF SEPARATION AND/OR DISTRIBUTION DOES NOT OCCUR. If the
Separation and/or Distribution does not occur, then all actions and
events that are, under this Agreement, to be taken or occur effective as
of the Separation Date and/or Distribution Date, or otherwise in
connection with the Separation and/or Distribution, shall not be taken or
occur except to the extent specifically agreed by Education and
Ambassadors.
6.6. TERMINATION. This Agreement may be terminated and the Distribution
abandoned at any time prior to the Time of Distribution by and in the
sole discretion of the Ambassadors Board of Directors without the
approval of Education or of Ambassadors's shareholders. In the event of
such termination, no party will have any liability of any kind to any
other party on account of such termination.
6.7. BINDING EFFECT; ASSIGNMENT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
legal representatives and successors, and nothing in this Agreement,
express or implied, is intended to confer upon any other Person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement. Except as herein specifically provided to the contrary,
neither party may assign this Agreement or any rights or obligations
hereunder, without the prior written consent of the other party, and any
such assignment shall be void; provided, however, either party (or its
permitted successive assignees or transferees hereunder) may assign or
transfer this Agreement as a whole without consent to an entity that
succeeds to all or substantially all of the business or assets of such
party to which this Agreement relates.
6.8. PERFORMANCE. Each party hereto will cause to be performed, and
hereby guarantees the performance of all actions, agreements and
obligations set forth herein to be performed by any subsidiary or any
member of such party's Group.
6.9. ADDITIONAL ASSURANCES. Except as may be specifically provided herein
to the contrary, the provisions of this Agreement shall be self-operative
and shall not require further agreement by the parties; provided,
however, at the request of either party, the other party shall execute
such additional instruments and take such additional acts as are
reasonable, and as the requesting party may reasonably deem necessary, to
effectuate this Agreement.
6.10. ENTIRE AGREEMENT. This Agreement, the Separation Agreement, all
other Transaction Agreements, including any annexes, schedules and
exhibits hereto or thereto, and other agreements and documents referred
to herein and therein, will together constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof
and shall supersede all prior negotiations, agreements and understandings
of the parties of any nature, whether oral or written, with respect to
such subject matter.
6.11. ATTACHMENTS. All attachments hereto are hereby incorporated in and
made a part of this Agreement as if set forth in full herein. Capitalized
terms used in the attachments hereto but not otherwise defined therein
will have the respective meanings assigned to such terms in this
Agreement.
6.12. DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in
any Exhibit or Schedule hereto and
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in the table of contents to this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement. When a reference is made in this Agreement to an Article
or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless
otherwise indicated.
6.13. GENDER AND NUMBER. Whenever the context of this Agreement requires,
the gender of all words herein shall include the masculine, feminine and
neuter, and the number of all words herein shall include the singular and
plural.
6.14. SEVERABILITY. The parties hereto have negotiated and prepared the
terms of this Agreement in good faith with the intent that each and every
one of the terms, covenants and conditions herein be binding upon and
inure to the benefit of the respective parties. Accordingly, if any one
or more of the terms, provisions, promises, covenants or conditions of
this Agreement or the application thereof to any person or circumstance
shall be adjudged to any extent invalid, unenforceable, void or voidable
for any reason whatsoever by a court of competent jurisdiction, such
provision shall be as narrowly construed as possible, and each and all of
the remaining terms, provisions, promises, covenants and conditions of
this Agreement or their application to other persons or circumstances
shall not be affected thereby and shall be valid and enforceable to the
fullest extent permitted by law. To the extent this Agreement is in
violation of applicable law, then the parties agree to negotiate in good
faith to amend the Agreement, to the extent possible consistent with its
purposes, to conform to law and effect the original intent of the
parties.
6.15. SURVIVAL OF AGREEMENTS. Except as otherwise contemplated by this
Agreement, all covenants and agreements of the parties contained in this
Agreement shall remain in full force and effect and shall survive the
time of Distribution.
6.16. GOVERNING LAW. This Agreement shall be construed in accordance with
and all Disputes hereunder shall be governed by the laws of the State of
California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior
Court of Los Angeles County and/or the United States District Court for
the Southern District of California shall have jurisdiction and venue
over all Disputes between the parties that are permitted to be brought in
a court of law pursuant to Section 5 above.
6.17. NOTICES. Any notice, demand, offer, request or other communication
required or permitted to be given by either party pursuant to the terms
of this Agreement shall be in writing and shall be deemed effectively
given the earlier of (i) when received, (ii) when delivered personally,
(iii) one Business Day after being delivered by facsimile (with receipt
of appropriate confirmation), (iv) one Business Day after being deposited
with a nationally recognized overnight courier service or (v) four days
after being deposited in the U.S. mail, First Class with postage prepaid,
and addressed to:
If to Ambassadors: With a copy to:
Ambassadors International, Inc. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Richman, Mann, Chizever, Philips & ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇-▇▇▇▇
If to Education: With a copy to:
Ambassadors Group, Inc. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Building Richman, Mann, Chizever, Philips & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Facsimile: Facsimile: ▇▇▇ ▇▇▇-▇▇▇▇
Ambassadors and Education may substitute a different address or facsimile
number, from time to time, if such substitute is provided to the intended
notice recipient in writing by notice given in the manner provided in
this section.
6.18. WAIVERS; REMEDIES. No failure or delay by any party hereto in
exercising any right, power or privilege hereunder will operate as a
waiver thereof, nor will any waiver on the part of any party hereto of
any right, power or privilege hereunder operate as a waiver of any other
right, power or privilege hereunder, nor will any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege hereunder. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which the
parties may otherwise have at law or equity.
6.19. NO IMPLIED LICENSES. Nothing contained in this Agreement shall be
construed as conferring any rights by implication, estoppel or otherwise,
under any intellectual property right, other than the rights expressly
granted in this Agreement with respect to Confidential Information.
Neither party is required hereunder to furnish or disclose to the other
any information.
6.20. INFRINGEMENT SUITS. Neither party shall have any obligation
hereunder to institute any action or suit against Third Parties for
misappropriation of any of its Confidential Information or to defend any
action or suit brought by a Third Party that alleges infringement of any
intellectual property rights by the Receiving Party's authorized use of
the Disclosing Party's Confidential Information.
6.21. LIMITATION OF LIABILITY. In no event shall any member of the
Ambassadors Group or Education Group be liable to any other member of the
Ambassadors Group or Education Group for any special, consequential,
indirect, incidental or punitive damages or lost profits, however caused
and on any theory of liability (including negligence) arising in any way
out of this Agreement, whether or not such party has been advised of the
possibility of such damages; provided, however, that the foregoing
limitations shall not limit each party's indemnification obligations for
liabilities to third parties as set forth in the Indemnification and
Insurance Matters Agreement.
6.22. FORCE MAJEURE. Neither party shall be liable or deemed to be in
default for any delay or failure in performance under this Agreement or
other interruption of service deemed to result, directly or indirectly,
from acts of God, civil or military authority, acts of public enemy, war,
accidents, explosions, earthquakes, floods, failure of transportation,
strikes or other work interruptions by either party's employees, or any
other similar cause beyond the reasonable control of either party unless
such delay or failure in performance is expressly addressed elsewhere in
this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties as of the date first written
above.
Ambassadors International, Inc., Ambassadors Education Group, Inc.,
a Delaware corporation a Delaware corporation
By: By:
-------------------------------- -------------------------------------
Title: Title:
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