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EXHIBIT (d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and made effective as of February 10, 2000, by
and between New England Business Service, Inc. ("NEBS") and Premium Wear, Inc.
("Premium Wear"). This Agreement provides for the protection from unauthorized
disclosure or use of Confidential Information (as defined below) that may be
furnished by one of the parties hereto to the other party and that may be used
by the receiving party solely for the purpose of evaluating or engaging in a
business relationship between the disclosing party and the receiving party.
1. "Confidential Information" means non-public information relating to the
disclosing party's business that the disclosing party designates as being
confidential or proprietary or which, under the circumstances surrounding
disclosure, ought to be treated as confidential. "Confidential Information"
includes, without limitation, ideas, concepts, designs, specifications,
drawings, blueprints, tracings, models, samples, data, computer programs,
marketing plans and strategies, business strategies, customer names, mailing
lists, prices, rates, costs, information received from others that the
disclosing party is obligated to treat as confidential, and other technical,
financial or business information. Confidential Information may be furnished in
any tangible or intangible form, including written or printed documents, visual
demonstrations or inspections, computer disks or tapes, other electronic media
and oral communications.
The receiving party's obligations hereunder will not apply, or will cease to
apply, to that Confidential Information which the receiving party can establish
(i) is or hereafter becomes generally known or available to the public or
interested persons through no breach of this Agreement by the receiving party;
(ii) is rightfully known to the receiving party without restriction on
disclosure at the time of its receipt from the disclosing party; (iii) is
rightfully furnished to the receiving party by a third party without breach of
an obligation of confidentiality; (iv) is disclosed to a third party by the
disclosing party without similar restrictions on such third party's rights; (v)
is independently developed by the receiving party without use of or reference to
the Confidential Information; (vi) is required to be disclosed pursuant to the
order of a court, administrative agency or other governmental body (provided
that the receiving party shall give the disclosing party reasonable notice prior
to such disclosure and shall comply with any applicable protective order or
equivalent); or (vii) is approved for release by written authorization of the
disclosing party.
2. Obligations of Receiving Party. The receiving party will protect Confidential
Information by using at least the same degree of care, but no less than a
reasonable degree of care, to prevent the unauthorized disclosure of such
Confidential Information as the receiving party uses to protect its own
confidential or proprietary information. The receiving party will neither
disclose nor copy Confidential Disclosure except as necessary for its employees,
agents or representatives with a need to know, provided that any such employee,
agent or representative shall have agreed in writing, as a condition to his or
her employment or engagement or in order to obtain Confidential Information, to
be bound by non-disclosure and non-use obligations substantially similar to this
Agreement. Any copies which are made will be identified as belonging to the
disclosing party and shall be reproduced with the disclosing party's proprietary
rights notices in the same manner in which such notices appear in the original
copy provided by the disclosing party. The receiving party will not use the
Confidential Information for any purpose except to evaluate a business
relationship with the disclosing party or otherwise in pursuance of such a
relationship. Nothing in this Agreement will be construed to limit the receiving
party's right to independently develop information similar to the Confidential
Information or to compete with the disclosing party so long as the receiving
party does not violate its obligations hereunder regarding the non-disclosure
and use of the Confidential Information.
3. Ownership of Confidential Information. All Confidential Information shall
remain the property of the disclosing party. By disclosing information to the
receiving party, the disclosing party does not grant any express or implied
right to the receiving party to or under any of the disclosing party's patents,
copyrights, trademarks or trade secret information. The receiving party will
return all originals, copies, reproductions and summaries of Confidential
Information immediately upon the disclosing party's request or, at the
disclosing party's option, destroy the same, and will deliver to the disclosing
party, upon its request, a certificate of a duly authorized officer certifying
as to the foregoing.
4. Non-Disclosure of Discussions. The parties agree not to disclose the
existence of this Agreement and the fact that they are engaged in discussions
unless required to do so by applicable securities laws as reasonably determined
by their respective legal counsel. If such disclosure is necessary, the parties
agree to notify each other as soon as possible in advance of such disclosure
and agree to provide a copy of such disclosure to the other party.
5. Standstill. NEBS agrees not to buy Premium Wear's common shares without
the written consent of the Board of Directors of Premium Wear prior to
March 1, 2002.
6. Remedies. The receiving party acknowledges that money damages would not be a
sufficient remedy for any breach of this Agreement, and the disclosing party
will be entitled to specific performance and injunctive relief as remedies for
any such breach. Such remedies will not be deemed to be the exclusive remedies
for a breach of this Agreement but will be in addition to all other remedies
available at law or equity to the disclosing party.
7. No Warranty. THE DISCLOSING PARTY MAKES NO REPRESENTATION, WARRANTY,
ASSURANCE, GUARANTY OR INDUCEMENT WHATSOEVER TO THE RECEIVING PARTY WITH
RESPECT TO THE QUALITY OF THE INFORMATION FURNISHED BY THE DISCLOSING PARTY,
NON-INFRINGEMENT OF ANY RIGHTS OF THIRD PARTIES, OR ANY OTHER MATTER OF ANY
NATURE WHATSOEVER. THE DISCLOSING PARTY ACCEPTS NO RESPONSIBILITY FOR ANY
EXPENSES, LOSSES OR ACTIONS INCURRED OR UNDERTAKEN BY THE RECEIVING PARTY AS A
RESULT OF RECEIPT OF ANY INFORMATION FROM THE DISCLOSING PARTY. This Agreement
does not require any party to furnish any information to another party. It is
further understood that neither party has any obligation under or by virtue of
this Agreement to enter into any type of business relationship with the other
party.
8. Term. The obligations of each receiving party hereunder with respect to the
non-disclosure and use of the disclosing party's Confidential Information shall
survive until such time as all such Confidential Information disclosed
hereunder becomes publicly known and made generally available through no action
or inaction of the receiving party.
9. General. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes any prior or
contemporaneous agreements or understandings, written or oral, concerning the
subject matter hereof. This Agreement may be amended, modified or revoked only
by a written instrument executed by all parties hereto. Failure to enforce any
provision of this Agreement shall not constitute a waiver of any term hereof,
and no waiver of a provision of this Agreement shall constitute a waiver of any
other provision(s) or of the same provision on another occasion. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Minnesota. Each party consents to personal jurisdiction in any action brought in
any court, federal or state, of competent jurisdiction within the State of
Minnesota. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
PREMIUM WEAR, INC. NEW ENGLAND BUSINESS SERVICE, INC.
5500 Feltl Road 500 Main Street
Minnetonka, MN 55343-7902 Groton, MA 01471
By: /s/ Thomas D. Gleason By: /s/ Daniel M. Junius
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(Signature of Authorized (Signature of Authorized
Representative) Representative)
Name: Thomas D. Gleason Name: Daniel M. Junius
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(Print) (Print)
Title: Chairman Title: Senior Vice President
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