CONFIDENTIALITY AGREEMENT THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is made as of ________________, 20___ by and between ________________________, whose principal office is at __________________________________, and ___________________________, whose principal office is at ___________________________________________ (the “Company”) identified below (collectively referred to as the “Parties” and in the singular as the “Party”). Recitals A. The Parties are currently engaged in discussions with respect to the evaluation of potential business transactions between them; and B. In connection with the evaluation of potential business transactions, the Parties intend to exchange information of a confidential and proprietary nature. C. The Parties wish to define their rights with respect to such information and to protect the confidential and proprietary features contained therein. NOW THEREFORE, in consideration of these premises and promises and agreements herein contained, the Parties agree as follows: 1. For purposes of this Agreement, Confidential Information shall mean all knowledge in whatever form, including without limitation visual, oral, electronic data, or written, that the Parties make available to each other from time to time concerning their respective business operations and plans, except that Confidential Information shall not include information which (a) is or becomes a matter of public record or is or becomes generally known to the public or in the trade, other than as a result of a breach of the obligations set forth in this Agreement, (b) is disclosed after the other Party has consented to such disclosure, or (c) a Party is legally required to disclose, provided that in advance of such disclosure, the other Party is given written notice of the intention to disclose such information, and the non-disclosing Party is afforded a reasonable opportunity to seek a protective order or other legal means of maintaining the confidentiality of the Confidential Information sought to be disclosed, and in such event, shall disclose only that portion of the Confidential Information which is required to be disclosed. 2. The Party making the disclosure of Confidential Information reserves all rights thereto. Both Parties shall hold all Confidential Information in the strictest confidence, and shall not use any Confidential Information for any purpose other than in connection with the evaluation of a potential business transaction between the Parties. No representation, express or implied shall be deemed to be made by virtue of any disclosure of Confidential Information to the other Party pursuant to this Agreement. 3. The Parties agree that without the prior written consent of the other Party, neither shall disclose (a) any Confidential Information to anyone other than their personnel and representatives, which may include outside legal counsel and accountants to the extent necessary for such persons to perform their duties with respect to the transactions contemplated hereby (“Representatives”), (b) the fact that Confidential Information has been provided to the other Party, or (c) that the Parties are discussing
the possibility of a business transaction involving the Parties. The Parties shall inform those Representatives who are provided with Confidential Information of the obligations set forth herein, and shall use their best efforts to cause each such person to comply with these obligations. 4. The Parties agree that Confidential Information shall not be copied or reproduced without the prior written consent of the other Party, except for such copies as may be reasonably required in furtherance of the evaluation of potential business transactions between the Parties. Within ten (10) days of a written request, each Party shall return to the other all documents and paper containing Confidential Information which are then in their possession, or at the direction of the other Party, shall destroy such Confidential Information (such destruction to be certified by such Party), and shall not retain any copies, extracts or other reproductions of such materials. Nothing in this Agreement shall create any obligation on the part of the Parties to continue to make Confidential Information available to the other party thereafter. 5. Each Party shall use the same procedures to prevent the disclosure of Confidential Information as it uses to protect its own Confidential Information, and to prevent unauthorized persons gaining access to such Confidential Information, and shall arrange proper and secure storage for Confidential Information received in the form of documents, papers, computer disks, magnetic tapes, or any other physical form. 6. No license or conveyance of any rights to either Party for any discoveries, inventions, or patents is granted or implied by the transmission of Confidential Information between the Parties. Unless otherwise agreed in writing, no right to use is granted or implied by either Party by the furnishing of Confidential Information to the other except as provided in paragraph 2 hereof. 7. All notices given under this Agreement shall be in writing and shall be deemed to have been properly addressed when sent by registered post or recorded delivery, return receipt request, to the offices of the Parties at the addresses contained in this Agreement unless a written notice of a change of address has been sent and received. 8. Neither the Confidential Information disclosed by General Roofing Services, Inc. hereunder nor any discussions undertaken between the Parties in connection with the evaluation of potential business transactions between the Parties shall be construed to serve to promote, market, announce or advertise (a) any potential business transaction between the Parties, or (b) the merit, value or price thereof. 9. This Agreement supersedes any and all prior or written agreements between the parties. Unless agreed in writing, the failure of either party, at any time, to require performance by the other of any provisions hereunder shall not affect its right thereafter to enforce the same, nor shall a waiver by either party or any breach of any provision hereof be taken or held to be a waiver of any other breach of any term or provision of this Agreement. To be enforceable, any modification or waiver of the provisions of this Agreement shall be in writing, signed by the Party against whom enforcement is sought. This Agreement is binding upon the Parties, their heirs, legal representatives, successors and assigns. This Agreement shall not be assignable by either Party without the express written consent of all Parties. 10. The Parties agree that this Agreement shall be governed and construed under and in accordance with the laws of the State of _________________, and that the courts of
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___________________ County shall be the exclusive venue and proper forum in which to adjudicate any case or controversy arising in connection with this Agreement. The Parties further agree and hereby waive and release any right to a trial by jury in any action arising out of the interpretation, enforcement or breach of this Agreement. The obligations of the Company and _____________________________, Inc. under this Agreement shall survive termination of the Parties’ discussions relating to potential business transactions between them and shall terminate two years from the date hereof. IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the date first above written.
COMPANY 1 By _______________________________ Its ________________________________
COMPANY 2 By _______________________________ Its ________________________________
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