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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.
3.
Non-Solicitation/Non-Hire . News acknowledges that
the Company’s employees are a key component to the
Company’s success and that the preservation of the
Company’s employee base is critical to, among other things,
the Company’s prospects. Consequently, News agrees
that, for a period of two (2) years from the Effective Date,
without the prior written consent of the Company, News will not,
and will cause its affiliates not to, directly or indirectly, (a)
solicit any individual who is an executive officer or other member
of senior management of the Company at the Effective Date or at any
time thereafter to leave his or her employment with the Company or
in
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