EXHIBIT J-1
FORM OF CONFIDENTIALITY AGREEMENT
[Date]
National Basketball Players Association
2 Penn Plaza
New York, NY 10121
Re: Confidentiality Agreement
Gentlemen:
This will confirm the agreement of the National Basketball
Players Association (“Players Association”)
(on behalf of itself and its employees, officers and
outside advisors) to maintain the confidentiality of
all Confidential Information (as defined in Paragraph
6 below) in connection with the audit, with respect
to the 20__-20__ Salary Cap Year, of (i) the National
Basketball Association (“NBA”) League Office,
(ii) any NBA team that the parties agree is to be included
in such audit with respect to such Salary Cap Year (the
“Team(s)”), and (iii) the expenses incurred
in connection with proceeds that come within Article
VII, Section 1(a)(1)(viii) of the Collective Bargaining
Agreement (“CBA”) entered into July ___,
2005, between the Players Association and the NBA (collectively,
the “Audit”). Capitalized terms not defined
herein shall have the meaning ascribed to such terms
in the CBA.
1. The NBA and the Team(s) shall make available Confidential
Information for purposes of the Audit based on the representation
of the Players Association that it (and its employees,
officers and outside advisors shall comply with the
terms of this Confidentiality Agreement at all times
during and after the Audit. To that end, before any
employee, officer or outside advisor of the Players
Association may be permitted to review any Confidential
Information, the Players Association shall require such
employee, officer or outside advisor to agree, in writing
(in the form of acknowledgment annexed hereto), to comply
with the terms of this Confidentiality Agreement, and
the Players Association shall promptly provide copies
thereof to the NBA.
2. The Players Association shall maintain the absolute
confidentiality of all Confidential Information at all
times and shall not disclose to any person or entity,
except as permitted herein, any Confidential Information.
The Players Association agrees that it may use or refer
to Confidential Information only during the course of
the Audit and solely for the purpose of conducting the
Audit in accordance with the terms and conditions of
the CBA and this Confidentiality Agreement, and that
Confidential Information may not be used or referred
to by the Players Association (or any of its employees,
officers and outside advisors), at any time, for any
purpose other than to conduct the Audit in accordance
with the terms and conditions of the CBA and this Confidentiality
Agreement. The Players Association (and its employees,
officers, NBA team player representatives (“Player
Representatives”) and outside advisors) shall
not disclose, disseminate or provide any Confidential
Information to any other person or entity (including
NBA players who are not officers of, or Player Representatives
for, the Players Association and any representative
of any player), at any time, for any purpose; provided,
however, that the Players Association may only disclose,
disseminate or provide a summary of Confidential Information
to Player Representatives in aggregate form without
identifying any specific information (e.g., by sponsor).
Notwithstanding anything to the contrary in this Confidentiality
Agreement, the Players Association shall not be deemed
to have violated any provision herein if the Players
Association discloses to such third party that the Audit
is being undertaken and that the Players Association
is subject to a confidentiality agreement and, therefore,
not permitted to discuss the Audit. The foregoing shall
not foreclose the Players Association from disclosing
Confidential Information during the course of a proceeding
before the System Arbitrator, an appeal to the Appeals
Panel of an award of the System Arbitrator and a judicial
action to enforce any such proceeding or award.
3. The Players Association shall adopt and implement
such procedures to insure the confidentiality of Confidential
Information as would be employed by a reasonable and
prudent person to safeguard the confidentiality of his
or her own most confidential information, or, if more
stringent, such procedures as are employed for such
purposes by the Players Association. Such procedures
shall include, but not be limited to, steps to insure
that such Confidential Information is disclosed only
to those Players Association employees and officers
and, subject to the restrictions set forth in Paragraph
2 above, Player Representatives who have a need to have
access to such Confidential Information and only for
the purpose of conducting the Audit in accordance with
the terms of the CBA and this Confidentiality Agreement.
The foregoing shall not foreclose the Players Association
from disclosing Confidential Information during the
course of a proceeding before the System Arbitrator,
an appeal to the Appeals Panel of an award of the System
Arbitrator and a judicial action to enforce any such
proceeding or award.
4. The Players Association agrees that no copies of
Confidential Information made available by the NBA and
the Team(s) may be removed from the NBA's or the Team(s)’
offices (as applicable).
5. If the Players Association is required by governmental
or judicial authorities (by oral questions, interrogatories,
requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose
any Confidential Information, it shall provide the NBA
and/or the Team(s) with prompt notice so that the NBA
and/or the Team(s) may seek an appropriate protective
order. If, in the absence of a protective order, the
Players Association is, after giving notice in accordance
with the preceding sentence, compelled to disclose Confidential
Information or else stand liable for contempt or suffer
other censure or penalty, the Players Association may
disclose only such Confidential Information as is necessary
to avoid such liability without incurring liability
hereunder.
6. For purposes of this Confidentiality Agreement, “Confidential
Information” shall mean all documents, materials
and other information reviewed or made available (whether
in written or oral form) in connection with the Audit
(including, without limitation, all documents, materials
and other information made available by PricewaterhouseCoopers,
LLP), and shall include all excerpts, extracts, summaries
and contents thereof and notes taken during the Audit;
provided, however that Confidential Information shall
not include information that (a) is or becomes generally
available to the public other than as a result of disclosure
by the Players Association (including Players Association
affiliates or representatives), (b) was available to
the Players Association prior to its disclosure by the
NBA or the Team(s) (as applicable), or (c) becomes available
to the Players Association from a source other than
the NBA or the Team(s), provided that such source is
not bound by a confidentiality agreement with the NBA,
the Team(s) or the Players Association.
7. The Players Association acknowledges that the terms
and conditions contained in this Confidentiality Agreement
are reasonable and necessary to protect the legitimate
interests of the NBA and the Team(s), do not cause the
Players Association undue hardship, and that any violation
of the provisions of this Confidentiality Agreement
or disclosure of any Confidential Information without
the NBA’s or the Team(s)’ (as applicable)
prior written consent will result in irreparable injury
to the NBA and/or the Team(s) for which there is no
adequate remedy. Accordingly, in the event of any such
violation or disclosure, the NBA and/or the Team(s)
shall be entitled to preliminary and permanent injunctive
relief from any federal or state court of competent
jurisdiction located in New York, New York, and the
Players Association hereby consents to, and waives any
objection to, venue and jurisdiction in such courts.
In addition, the Players Association shall indemnify
and hold harmless the NBA and its members teams and
their respective affiliates, owners, directors, governors,
officers and employees, and the successors, assigns
and personal representatives of the foregoing parties
(“NBA indemnified parties”), from and against
all liability, damages and costs (including attorneys
fees) arising out of any claim asserted against any
NBA indemnified party relating to any use or disclosure
of Confidential Information by, or the violation of
this Confidentiality Agreement by, the Players Association
(or any of its employees, officers, Player Representatives
and outside advisors), provided that: (a) the Players
Association is given prompt notice of any such claim,
(b) has the right to approve counsel and/or has the
opportunity to undertake the defense of such claim and
(c) the indemnified party does not admit liability with
respect to and does not settle such claim without the
prior written consent of the Players Association. The
Players Association also agrees that the relief provided
for in this Paragraph 7 shall be cumulative and in addition
to any other rights or remedies to which the NBA and
the Team(s) may be entitled.
8. This Confidentiality Agreement is the final and complete
agreement between the parties with respect to its subject
matter. Any waiver of or modification to this Confidentiality
Agreement must be in a writing and signed by each party.
Any waiver in any particular instance of the rights
and limitations contained herein shall not be deemed
and is not intended to be a general waiver of any rights
or limitations contained herein and shall not operate
as a waiver beyond the particular instance.
9. This Confidentiality Agreement shall be governed
by and construed and enforced in accordance with the
laws of the State of New York, without giving effect
to the principles of conflicts of law thereof.
If the foregoing coincides with your understanding of
our agreement, please sign the enclosed copy of this
letter and return it to me.
Sincerely,
NATIONAL BASKETBALL ASSOCIATION
By:__________________________
AGREED TO AND ACCEPTED:
NATIONAL BASKETBALL PLAYERS ASSOCIATION
By:_____________________________
ACKNOWLEDGMENT
The undersigned hereby acknowledges that I have read
the Confidentiality Agreement between the National Basketball
Players Association and the National Basketball Association
dated _____________, 20___, and agree to comply with
all of the terms and conditions contained therein.Date:
________________________By:___________________________
Name:_________________________
Title:__________________________
* * * * * * * * * * * * *
The National Basketball Players Association hereby acknowledges
that the person identified above is an employee, officer,
or outside advisor of the National Basketball Players
Association.
National Basketball Players Association
Date:___________________________
By:_____________________________
Name:__________________________
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