CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETITION AGREEMENTNonSolicitation Agreement |
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EXHIBIT
10.2
EXECUTION
VERSION
Confidentiality, Non-Solicitation
and Non-Competition Agreement
This
Confidentiality, Non-Solicitation and Non-Competition Agreement, dated as of
December 22, 2006, is hereby entered into between The DirecTV Group, Inc.,
a
Delaware corporation (the “Company”), and News Corporation, a Delaware
corporation (“News”).
WHEREAS,
News through its wholly owned subsidiary Fox Entertainment Group, Inc. (“FEG”)
owns certain shares of common stock, par value $.01 per share, of the Company
(the “Common Stock”);
WHEREAS,
News has entered into an agreement with Liberty Media Corporation (“Liberty”) to
cause to be transferred to Liberty all of the Common Stock in exchange for
the
transfer to News by Liberty and its affiliates of certain shares of Class A
common stock, par value $.01 per share, and certain shares of Class B common
stock, par value $0.01 per share, of News (the “Transaction”);
WHEREAS,
in connection with the Transaction, News has formed, a special purpose entity
which is a Delaware corporation (“Splitco”) to hold, among other things, all of
the Common Stock;
WHEREAS,
as of the closing of the Transaction, (i) Liberty will acquire 100% of the
issued and outstanding common stock, par value $0.01 per share of Splitco and,
through such ownership of Splitco, indirectly own 100% of the Common Stock
and
(ii) News will not own directly or indirectly any shares of common stock, par
value $.01 per share, of the Company or any other equity or other voting
securities of the Company;
WHEREAS,
in connection with the Transaction, the Company has provided certain
confidential information regarding the Company and its subsidiaries and
affiliates to Liberty pursuant to a confidentiality agreement, dated as of
August 28, 2006, between the Company and Liberty;
WHEREAS,
News acknowledges the highly competitive nature of the businesses of the Company
and its subsidiaries and affiliates and further acknowledges that it has been
provided with access to sensitive, proprietary and confidential information
of
the Company and has been provided with the opportunity to develop relationships
with customers, vendors, prospective customers, prospective vendors, employees
and other agents of the Company, which, in each case, News acknowledges and
agrees constitute valuable assets of the Company;
NOW,
THEREFORE, in consideration of the foregoing and the covenants and agreements
herein contained, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, each of the parties hereby agrees
as follows:
1. Definitions.
(a) “affiliate”
shall mean, with respect to any person, any other person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or
is under common control with, such person; provided, however that the
term “affiliate” when used with respect to News or any affiliate of News shall
not include the Company or any of its subsidiaries. The term
“control” means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, by contract or otherwise, including
the ability to elect the members of the board of directors or other governing
body of a person, and the terms “controlled” and “controlling” have correlative
meanings.
(b) “Effective
Date” shall mean the date on which the Transaction is consummated.
(c) “Proprietary
Information” shall mean all non-public, proprietary or confidential information
obtained by News or its Representatives in connection with News’ prior ownership
of shares of Common Stock or as a result of certain individuals affiliated
with
News or its Representatives serving on the Board of Directors of the Company,
including without limitation trade secrets, know-how, research and development,
software, databases, inventions, processes, formulae, technology, designs and
other intellectual property, information concerning finances, investments,
profits, pricing, costs, products, services, vendors, customers, customers,
joint venture partners, personnel, recruiting, advertising, sales, marketing,
promotions, government and regulatory activities and approvals, concerning
the
past, current or future business, activities and operations of the Company
or
any of its subsidiaries or affiliates. “Proprietary Information” does
not include, however, information which (i) is or becomes generally available
to
the public, other than as a result of a disclosure by News or its
Representatives, (ii) was or becomes available to News from a person other
than
the Company or any of the Company’s Representatives who is not known by News, in
good faith, to be bound by a confidentiality agreement with the Company or
any
of the Company’s Representatives, or is otherwise not known by News, in good
faith, to be under an obligation to the Company or any of the Company’s
Representatives not to disclose the information, or (iii) News can establish
was
or is independently developed by News or its Representatives without reliance
upon any Proprietary Information.
(d) “Representative”
shall mean, with respect to any person, such person’s subsidiaries and
affiliates and such person’s and their subsidiaries’ and controlled affiliates’
directors, officers, employees, agents, advisors (including, without limitation,
financial advisors, legal counsel and accountants) and controlling
persons.
(e) “person”
shall mean any corporation, limited liability company, partnership, other entity
or individual.
2. Confidentiality. News
agrees that, it will, and it will cause its Representatives to, keep
all Proprietary Information in its possession as of the Effective Date
confidential and refrain from using such Proprietary Information;
provided, that, notwithstanding anything to the contrary herein, News may
use such Proprietary Information to the extent reasonably necessary for purposes
of preparing and filing tax returns, corresponding with tax authorities,
preparing accounting records, and in connection with any litigation, including,
without limitation, litigation arising out of, relating to resulting from the
Transaction or the subject matter of such Proprietary
Information. News agrees to be responsible for any breach of this
Agreement by any of its Representatives.
