T HIS C ONFIDENTIALITY A GREEMENT (“ Agreement ”) is being entered into as of January 11 , 2012, between OPNET Technologies, Inc., a Delaware corporation (“ OPNET” ), and Riverbed Technology, Inc. (“ RIVERBED ”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving OPNET and RIVERBED (referred to collectively as the “ Parties ” and individually as a “ Party ”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “ Provider ”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “ Recipient .”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or
(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 14 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all actions reasonably necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Contact Persons. Any request by RIVERBED or any of its Representatives to review any of OPNET’s Confidential Information must be directed to OPNET’s representatives from Lazard, Marc A. Cohen, Alain J. Cohen, Mel Wesley, or Dennis McCoy, or as otherwise authorized by the OPNET. Neither RIVERBED nor any of its Representatives will contact or otherwise communicate with any other Representative of OPNET in connection with a possible negotiated transaction without the prior written authorization of OPNET.
3. No Representations by Provider. The Provider will have the exclusive authority to decide what Confidential Information (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s
Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “ Definitive Agreement ”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process.
(b) If prior to disclosing certain specific Confidential Information, the Provider delivers to the Recipient a written notice stating that the certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will reasonably cooperate with the Provider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable best efforts to
ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and its Representatives will promptly deliver to the Provider, or at the Recipient’s election, destroy any of Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of its Representatives; provided, however, that, in the event Recipient and its Representatives elect to destroy such Confidential Information, the Recipient shall deliver to Provider a certificate confirming such destruction. Notwithstanding the foregoing, the Recipient and its Representatives may retain copies of the Confidential Information to the extent that such retention is required to demonstrate compliance with applicable law or governmental rule or regulation, to the extent included in any board or executive documents relating to the proposed business relationship, and in its archives for backup purposes subject to the confidentiality provisions of this Agreement. Notwithstanding the delivery to the Provider (or the destruction or retention by the Recipient or its Representatives) of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other respective obligations under this Agreement and shall not access such information for any purpose other than to destroy or delete it or as may be required by applicable law or governmental rule or regulation.
6. Authority to Disclose Confidential Information; Warranty Disclaimer. Each Party represents that it has the legal right to possess and disclose any Confidential Information disclosed hereunder. The Parties make no express or implied representation or warranty as to the accuracy or completeness of any of the information furnished to each other or their respective Representatives pursuant hereto. Neither Party nor any of their Representatives shall have any liability to the other Party or its Representatives relating to or arising from reliance upon the accuracy of any information or any errors or omissions therein. For purposes of this Section 6, “information” is deemed to include all information furnished by a Party or its Representatives to the other Party or its Representatives, regardless of whether such information constitutes “Confidential Information” as defined in Section 12. Further, nothing in this Agreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products, services, and other materials, which are similar to or competitive in any geographic area and in any form with the other party’s product(s) or service(s) so long as such party is not in breach of its confidentiality obligations and restrictions of use of Confidential Information as set forth in this Agreement.
7. No Prohibition on Independent Development; Use of Residuals. The terms of this Agreement shall not be construed to limit either Party’s right to independently develop or acquire products without use of the other Party’s Confidential Information. Further, the recipient Party shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the disclosing Party, provided that the recipient Party shall not disclose the Confidential Information except as expressly permitted under the terms of this Agreement. The term “residuals” means information in intangible form, which is retained in the unaided memory of persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. The recipient Party shall not have any obligation to limit or restrict
the assignment of such persons or to pay royalties for any work resulting from the use of residuals, however, this Section shall not be deemed to grant to the recipient Party a license under the disclosing Party’s copyrights or patents.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agr