| EX-99.D.3 | |
| MUTUAL NON-DISCLOSURE AGREEMENT | |
| THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the | |
| “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a | |
| Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). | |
| Pyramid and the Company are sometimes referred to in this Agreement individually as a | |
| “Party” and collectively as the “Parties”. | |
| WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files | |
| reports and proxy materials under the Securities Exchange Act of 1934, which are publicly | |
| available. | |
| WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for | |
| purposes of engaging in preliminary discussions regarding and evaluating a possible strategic | |
| merger, acquisition or business combination between the Parties (the “Business Purpose”). | |
| NOW THEREFORE, the Parties agree as follows: | |
| 1. | |
| Definition of Confidential Information. | |
| The term “Confidential Information” means | |
| any and all information that is or has been received by either Party (the “Recipient”) from | |
| the other Party (the “Disclosing Party”), or which the Recipient has had access to, during | |
| the four (4)-month period commencing on the Effective Date (the “Term”), and that is either | |
| (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information | |
| related to the Disclosing Party’s business, which the Receiving Party should reasonably know is | |
| confidential based on the nature of such information. | |
| Without limiting the generality of the | |
| foregoing, Confidential Information shall include the following, whether in tangible or electronic | |
| form: business plans, customer database information, employee and independent contractor lists, | |
| internal reports and investigations, research and work in progress, source and object code, | |
| technical manuals, financial statements and projections, cost summaries and pricing formulae, | |
| algorithms, confidential filings with any international, federal or state agency, and all other | |
| information concerning methods of doing business, ideas and inventions (whether or not patentable), | |
| and data that derives independent economic value, actual or potential, from not being generally | |
| known to persons who can obtain economic value from its disclosure or use that is the subject of | |
| reasonable efforts by the Company to maintain its secrecy. | |
| 2. | |
| Excluded Information. | |
| Confidential Information shall not include any information that: (a) | |
| prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or | |
| available to the Recipient as evidenced by prior written records; (b) through no wrongful act, | |
| fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; | |
| (c) is lawfully received by the Recipient from a third party without restriction and without breach | |
| of this agreement or any other agreement; (d) is approved for public release or use by written | |
| authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently | |
| developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is | |
| disclosed pursuant to the requirement or request of a governmental agency or court of competent | |
| jurisdiction to the extent such disclosure is required by a valid law, regulation or court order | |
| and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or | |
| request in order to permit the Disclosing Party to seek an appropriate protective order or | |
| exemption from such requirement or request. | |
| 3. | |
| Non-Disclosure and Confidentiality. | |
| The Recipient shall not (a) use the Confidential | |
| Information except for the Business Purpose, or (b) disclose or make the Confidential Information | |
| available to any person or entity (other than Related Parties, as defined below) without the prior | |
| written consent of the Disclosing Party. | |
| Each Party shall take reasonable security precautions to | |
| protect the Confidential Information, at least as strict as the precautions it takes to protect its | |
| own confidential and proprietary information of a similar nature. | |
| Without the prior written | |
| consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the | |
| disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal | |
| advisors, or to its directors, officers, or employees with a demonstrable need to know such | |
| Confidential Information (each, a “Related Party”, and, collectively, the “Related | |
| Parties”), provided that any such Related Party either agrees to be bound by this Agreement or | |
| is already bound by confidentiality obligations no less restrictive than those in this Agreement. | |
| Each Party shall be responsible for the breach of this Agreement by any Related Party. | |
| Neither | |
| Party shall use any Confidential Information received by it to develop a product or service which | |
| competes with or imitates products of the Disclosing Party or engage in reverse engineering to | |
| develop similar products or services using the Confidential Information (it being acknowledged and | |
| understood that both Parties are engaged in the business of beer brewing and that competing beer | |
| products are regularly independently developed within the beer industry using the same or similar | |
| raw materials, processes and packaging). | |
| The Recipient shall prevent commingling of the | |
| Confidential Information with similar information or material of other third parties. | |
| The | |
| obligations of confidentiality and protection under this Agreement shall survive for three (3) | |
| years following the expiration of the Term. | |
| 4. Non-Solicitation. | |
| Other than through general employment listings and advertising or | |
| through the efforts of employment search firms, each Party shall not, during the Term of this | |
| Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or | |
| independent contractor of the other Party, or induce any such person to abandon their relationship | |
| with the other Party. | |
| 5. | |
| No Warranty. | |
| THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY | |
| HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, | |
| SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION. | |
| 6. | |
| No License or Obligations; Return of Confidential Information. | |
| This Agreement does not | |
| represent nor imply any agreement or commitment to enter into any further business relationship. | |
| This Agreement does not create any agency or partnership relationship between the Parties or | |
| authorize a Party to use the other Party’s name or trademarks. | |
| As between the Parties, all | |
| Confidential Information received by a Recipient shall remain the sole and exclusive property of | |
| the Disclosing Party. | |
| Upon written request by the Disclosing Party, the Recipient shall return to | |
| the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all | |
| tangible or electronic forms of Confidential Information, including any and all copies of the | |
| Confidential Information or notes containing the Confidential Information, and shall provide a | |
| written certification to the Disclosing Party that all tangible forms of the Confidential | |
| Information have been returned or destroyed. | |
| 7. | |
| Remedies for Breach. | |
| The Parties agree that money damages would be inadequate to remedy | |
| any breach of this Agreement. | |
| As a result, a non-breaching party shall be entitled to seek, and a | |
| court of competent jurisdiction may grant, specific performance and | |
| 2 | |
| injunctive or other equitable relief as a remedy for any breach of this Agreement. | |
| Such | |
| remedy shall be in addition to all other remedies, including money damages, available to a | |
| non-breaching party at law or in equity. | |
| 8. Notices. | |
| Any notice given by one Party to the other under this Agreement shall be sent by | |
| registered mail, return receipt requested, or reputable overnight courier to the addresses listed | |
| below (or such address changed by the giving of like notice to the other Party), and shall be | |
| deemed received upon actual receipt by the recipient Party. | |
| 9. | |
| Governing Law; Attorneys’ Fees. | |
| This Agreement, including all matters of construction, | |
| validity and performance, shall be governed by, construed and enforced in accordance with the laws | |
| of the State of Washington, as applied to contracts made and to be fully performed in such state, | |
| without regard to its conflict of law rules. | |
| The Parties consent to the jurisdiction of the state | |
| and federal courts located in New York, New York. | |
| A prevailing Party shall be entitled to an award | |
| of its reasonable attorneys’ fees and costs arising out of this Agreement. | |
| 10. Miscellaneous. | |
| This Agreement sets forth the entire agreement between the Parties hereto | |
| with respect to its subject matter, and any and all prior agreements, understandings or | |
| representations with respect to its subject matter are merged herein. | |
| This Agreement may be | |
| amended and any provision may be waived only by the written agreement of the Parties. | |
| The terms and | |
| conditions of this Agreement shall inure to the benefit of and be binding upon the respective | |
| successors and assigns of the Parties, provided that Confidential Information of the Disclosing | |
| Party may not be assigned by the Recipient without the prior written consent of the Disclosing | |
| Party. | |
| If any provision of this Agreement is held by a court of competent jurisdiction to be | |
| invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining | |
| provisions shall not in any way be effected, impaired or invalidated thereby. | |
| This Agreement may | |
| be executed in two or more counterparts or by other electronic means, each of which shall be deemed | |
| an original, and all of which together shall constitute one and the same instrument. | |
| 3 | |
| IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written | |
| above. | |
| PYRAMID BREWERIES INC., | |
| MAGIC HAT BREWING COMPANY & PERFORMINGARTS CENTER, INC., | |
| a Washington corporation | |
| a Vermont corporation | |
| By (signature): | |
| By (signature): | |
| Printed Name: | |
| Printed Name: | |
| Title: | |
| Title: | |
| Address: | |
| 91 South Royal Brougham Way | |
| Address: | |
| 5 Bartlett Road | |
| Seattle, WA 98134 | |
| South Burlington, VT 05403 | |
| Fax: | |
| Fax: | |
| (802) 658-5788 | |
| 4 | |