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EXHIBIT (D)4
Strictly Private & Confidential
Nokia Internet Communications, Inc.
313 Fairchild Drive
Mountain View, CA 94043
Attention: Mika Vehvilainen
October 16, 2000
Ladies and Gentlemen:
Confidentiality Agreement (this "Agreement")
You have expressed an interest in a possible negotiated transaction (the
"Proposed Transaction") involving Ramp Networks, Inc.'s ("Ramp") business (the
"Business"). In consideration of Ramp making the Confidential Information
about the Business available to you, you hereby agrees as set out below:
1. For the purposes of this Agreement
"Confidential Information" means all information (whether written, oral or
in any other form) furnished to you after the date hereof in connection
with the Proposed Transaction by Ramp or by Ramp's Representatives, and all
information regarding the existence, nature or progress of any negotiations
relating to the Proposed Transaction. Confidential Information shall also
expressly include all data, reports, analyses, compilations, studies,
evaluations or forecasts prepared by you that contain or otherwise reflect,
in whole or in part, or are based upon any of the foregoing. As used in
this Agreement, the term "Representative" means, as to any person, the
directors, officers, employees, agents, advisors (including without
limitation, financial advisors, counsel and accountants) and other
Representatives of such person, such person's Affiliates and such person's
financial sources. As used in this Agreement, the term "person" shall be
broadly interpreted to include, without limitation, any corporation,
company, partnership or other legal or business entity or any individual.
As used in this Agreement, the term "Affiliate" of a person means any
second person under common control with the first person.
2. All Confidential Information shall be kept strictly confidential and you
shall not disclose in whole or in part any Confidential Information to any
person other than those of your Representatives, who in your reasonable
judgement need to know any Confidential Information for the purpose of
evaluating the Proposed Transaction and are informed of the confidential
nature of the Confidential Information. You expressly agree that you shall
be responsible for any breach of this Agreement by your Representatives and
shall take all reasonable necessary measures to restrain your
Representatives from unauthorized disclosure or use of the Confidential
Information.
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3. The Confidential Information shall be used by you and by any person to whom
it is property disclosed in accordance with Section 2 of this agreement
solely for the purpose of evaluating and negotiating the Proposed
Transaction and may not be used for any other purpose. It is expressly
acknowledged and agreed by Ramp that you are currently engaged in the
design and manufacture of products similar to those forming a material part
of the Business and that, except as expressly agreed herein in respect of
Confidential Information, nothing in this Agreement shall be construed to
limit your right and freedom to design and manufacture products that
perform similar functions or have similar features to those of the current
and planned products of Ramp.
4. The obligation to maintain the confidentiality of the Confidential
Information shall terminate upon the earlier of (i) the consummation of the
Proposed Transaction or (ii) otherwise the third anniversary of the date
first written above.
5. The obligations to maintain the confidentialilty of and not to use the
Confidential Information do not extend to nor apply to Confidential
Information (i) which at the time of disclosure to you is publicly
available or (ii) which, after such disclosure, becomes publicly available
otherwise than through an unauthorized disclosure by you or your
Representatives or (iii) which was in your possession prior to such
disclosure and which was not acquired directly or indirectly from Ramp or
(iv) which is independently developed or derived by you or (v) which, on
the advice of legal counsel, you are compelled to disclose by legal
process, law, regulation or stock exchange rule; provided, however, that in
such event you shall provide Ramp with prompt written notice so that Ramp
may seek a protective order or other appropriate remedy and provided,
further, that you shall use your reasonable best efforts to obtain reliable
assurance that confidential treatment shall be accorded such information.
6. You shall be free to use for any purpose the residuals (hereinafter
"Residuals") resulting from access to or work with Confidential
Information. The term "Residuals" means those concepts or ideas which are
of general application, and not related to any specific technology or
project and which are retained in the unaided memories of those employees
that work with the Confidential Information, without reference to any
material which is written, stored in magnetic, electronic or physical form
or otherwise fixed, and expressly excluding any information or works
protected by copyright, patent or similar legislation. An employee's memory
is unaided if the employee is not intentionally memorized the Confidential
Information for the purpose of retaining and subsequently using or
disclosing it. You shall not have any obligation to limit or restrict the
assignment of persons retaining Residuals or to pay royalties for any work
resulting from the use of such Residuals.
7.If you determine that you do not wish to proceed with the Proposed
Transaction, you will advise Ramp of that decision. In that case, or in the
event that Ramp so requests or the Proposed Transaction is not consummated
by you, you will, upon Ramp's request, destroy all Confidential
Information, in your possession or in the possession of any Representative
of yours.
8.Notwithstanding anything in this Agreement to the contrary, Ramp represents
and warrants that it may rightfully disclose or make available Confidential
Information to you without the violation of any contractual, legal,
fiduciary, or other obligation to any person, and Ramp agrees to indemnify
and hold harmless in full you and your Representatives against any and all
damages, costs and expenses of any nature whatsoever (including, but not
limited to attorney's fees) incurred by you or your Representatives in
connection with the untruth of such representation or the breach by Ramp of
such warranty. Although Ramp has endeavored to include in the Confidential
Information all material which it believes to be relevant for your
evaluation, you understand and agree that Ramp makes no warranty as to the
accuracy or completeness of any Confidential Information and you agree to
take full responsibility for all conclusions you may derive from the
Confidential Information.
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9.You agree that, without the prior written consent of Ramp, you will not, for
a period of twelve months from the date of this Agreement, directly solicit
for employment any person who is now employed by Ramp and who is identified
by you as a result of your evaluation or otherwise in connection with the
Proposed Transaction; provided, however, that the foregoing provision shall
not, including but not limited to, prohibit any advertisement or general
solicitation that is not specifically targeted at such persons, or persons
known to you prior to the date hereof.
10.You understand that (i) Ramp shall conduct the process for a Proposed
Transaction as it in its sole discretion shall determine (including,
without limitation, negotiating with any prospective buyer and entering
into definitive agreements without prior notice to you or any other
person), (ii) any procedures relating to such Proposed Transaction may be
changed at any time without notice to you or any other person, (iii) Ramp
shall have the right to reject or accept any potential buyer, proposal or
offer, for any reason whatsoever, in its sole discretion, and (iv) neither
you nor any of your Representatives shall have any claims whatsoever
against Ramp or its directors, officers, stockholders, owners, affiliates
or agents arising out of relating to the Proposed Transaction (other than
those against the parties to a definitive agreement with you in accordance
with the terms thereof).
11.You agree that for a period (the "Restricted Period") from the date of this
Agreement until the earlier of (i) a period of twelve months or (ii) the
occurrence of a Significant Event (as defined below), neither you nor any
of your Representatives will, without the prior written consent of Ramp, or
its Board of Directors;
(a) acquire, offer to acquire, or agree to acquire, directly or indirectly,
alone or as part of a group, by purchase or otherwise, any voting
securities or direct or indirect rights to acquire any voting securities
of Ramp, or of any successor to or person in control of Ramp, or any
assets of Ramp or of any such successor or controlling person;
(b) seek to advise or influence any person or entity with respect to the
voting of any voting securities of Ramp;
(c) make any public announcement with respect to, or submit a proposal for,
or offer of (with or without conditions) any extraordinary transaction
involving Ramp or any of its securities or assets; or
During the Restricted Period, Ramp will promptly advise you of any
Significant Event, "Significant Event" shall mean any of the following: (1)
the acquisition by any person or 13D Group (as defined below) or beneficial
ownership of Voting Securities (as defined below) representing 10% or more
of the then outstanding Voting Securities; (ii) the announcement or
commencement by any person or 13D Group of a tender or exchange offer to
acquire Voting Securities which, if successful, would result in such person
or 13D Group owning, when combined with any other Voting Securities owned
by such person or 13D group, 10% or more of then outstanding Voting
Securities; or (iii) Ramp enters into a definitive agreement relating to
any merger, sale or other business combination transaction pursuant to
which the outstanding shares of common stock of Ramp ("Common Stock") would
be converted into cash or securities of another person or 13D Group or 50%
or more of the then outstanding shares of Common Stock would be owned by
persons other than the then current holders of shares of Common Stock, or
which would result in all or a substantial portion of Ramp's assets being
sold to any person or 13D Group. "Voting Securities" shall mean at any time
shares of any class of capital stock of Ramp which are then entitled to
vote generally in the election of directors; provided that for purposes of
this definition any securities which at such time are convertible or
exchangeable into or exercisable for shares of Common Stock shall be deemed
to have been so converted, exchanged or exercised. "13D Group" shall mean
any group of persons formed for the purpose of acquiring, holding, voting
or disposing of Voting Securities which would require under Section 13D of
the Exchange Act and the rules and regulations thereunder to file a
statement on Schedule 13D with the SEC as a "person" within the meaning of
Section 13(d)(3) of the Exchange Act if such group beneficially owned
Voting Securities representing more than 5% of the total combined voting
power of all Voting Securities then outstanding.
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12. You agree that, unless and until a definitive agreement between you and
Ramp with respect to the Proposed Acquisition has been executed and
delivered, neither you nor Ramp will be under any legal obligation of any
kind whatsoever with respect to the Proposed Transaction by virtue of this
Agreement or any other written or oral expression by it or by any of its
Representatives except, in the case of this Agreement, for the matters
specifically agreed to herein.
13. You confirm that you will be responsible for any costs incurred by
yourselves and your Representatives in pursuing the Proposed Transaction.
14. You acknowledge and agree that damages only would not be an adequate
remedy for any breach of this Agreement by you and that accordingly the
parties entitled to the benefit of this Agreement shall be entitled (but
not limited) to injunctive or other equitable relief.
15. This Agreement shall be governed by and construed in accordance with the
laws of the State of California. Any dispute arising out of or relating to
this Agreement shall be finally settled by arbitration in San Francisco,
California, under the rules then in effect of the American Arbitration
Association.
16. If any term or other provision of this agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this agreement shall nevertheless
remain in full force and effect so long as the economic and legal
substance of the transactions contemplated by this agreement is not
affected in any manner materially adverse to either party.
17. This Agreement may be executed and delivered (including facsimile
transmission) in one or more counterparts, each of which when delivered
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. This Agreement contains the entire
agreement between you and Ramp concerning confidentiality of the
Confidential Information, and no modification of this Agreement or waiver
of the terms and conditions hereof shall be binding upon you or Ramp,
unless approved in writing by you and Ramp.
Please confirm your agreement with the foregoing by signing and returning
to the undersigned the duplicate copy of this Agreement enclosed herewith.
RAMP NETWORKS, INC.
/s/ Mahesh Veerina
By: _________________________________
Name: Mahesh Veerina
Title: President & CEO.
Accepted and agreed as of the date
first written above:
NOKIA INTERNET COMMUNICATIONS INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Senior Vice President
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