DRAFT PROPRIETARY INFORMATION AGREEMENT THIS AGREEMENT made this day of “Effective Date” by and be

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DRAFT PROPRIETARY INFORMATION AGREEMENT THIS AGREEMENT made this day of “Effective Date” by and be Powered By Docstoc
					                                         DRAFT
                         PROPRIETARY INFORMATION AGREEMENT




         THIS AGREEMENT made this ____ day of ________ (“Effective Date”), by and between
________________________________, a __________ corporation, with registered office
______________________________ (hereinafter “______” or the “Receiving Party”), and
COMPANY X S.A., a Belgian corporation, acting in its name and in the name and on behalf of its
affiliates, with registered ________________ (Belgium), registered under _________ (hereinafter
“Company X” or the “Disclosing Party”)



                                         BACKGROUND:

       _______ has decided to participate in the sale process of Company X’s ___________
business (hereinafter referred to as the “Potential Transaction”).

        In connection with such Potential Transaction, the Receiving Party may be supplied with
certain business’ technical and/or financial information, which the Receiving Party is to regard as
being confidential and proprietary information (collectively “Proprietary Information” as defined in
Paragraph 1) pursuant to the terms and conditions of this Agreement.

      Company X has appointed ______, with registered office ________ (hereinafter referred to
as “COMPANY Y”) as financial adviser in order to assist it for the completion of the Potential
Transaction and the Proprietary Information may therefore be provided either by Company X or by
COMPANY Y.

       To induce Company X and/or COMPANY Y to furnish Proprietary Information to the
Receiving Party, and for other valuable consideration, the parties agree as follows:

       1.      "Proprietary Information" shall mean all information hereafter transmitted,
               regardless of how transmitted, directly or indirectly from Company X and/or
               COMPANY Y and received by the Receiving Party, including but not limited to the
               business, financial condition, operations, assets, liabilities, technology, know-how,
               products, trade secrets, inventions, market strategies, services, customers and
               prospective customers, and other technical or business information related thereto
               and belonging to Company X, as well as any disclosed information whose nature
               makes it obvious that it is confidential. The Receiving Party agrees to hold the
               Proprietary Information, which includes also the fact that information has been
               provided or discussions are taking place – as well as the content of such
               discussions -, in trust and confidence.

       2.      The terms “Disclosing Party” and “Receiving Party” shall include the respective
               subsidiaries and affiliated companies, employees, agents and representatives of
               each.

       3.      The Receiving Party expressly agrees that its obligations towards Proprietary
               Information as set forth in this Agreement shall be and shall remain strictly the same
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      regardless of which Proprietary Information has been disclosed or otherwise
      transmitted by Company X and/or COMPANY Y to the Receiving Party. In this
      respect Proprietary Information disclosed by Company X and COMPANY Y to the
      Receiving Party shall be held in confidence by the Receiving Party and shall not be
      used, disclosed to others or in any way exploited for the benefit of the Receiving
      Party other than its use by the Receiving Party solely for the purpose of evaluating
      the Potential Transaction. Receiving Party will limit access to Proprietary
      Information, on a strict need to know basis, to those of its employees, agents or
      representatives who have been advised of its confidential nature.

      The confidentiality obligations contained in this Agreement shall extend to the
      Proprietary Information disclosed on a need-to-know basis to external tax, finance
      or legal advisers, under the responsibility of the Receiving Party which discloses
      such Proprietary Information. All Proprietary Information disclosed hereunder shall
      remain the property of Company X, and the Receiving Party shall not obtain any
      right or license of any kind to the Proprietary Information disclosed.

4.    The Receiving Party shall safeguard the Proprietary Information in a manner
      consistent with the protection of its own proprietary information of a similar nature.
      The Receiving Party shall not disclose, without prior written consent of Company X,
      to any third party (except as permitted in Paragraph 3 above), the fact that
      Proprietary Information has been disclosed to the other party or the existence,
      nature or status of discussions concerning the Potential Transaction involving the
      parties.

5.    This Agreement shall not affect the Receiving Party's rights to use or disclose
      Proprietary Information which the Receiving Party can demonstrate:

(a)   at the date of its receipt, is part of the public domain or, after such date, becomes
      part of the public domain, through no fault or negligence of the Receiving Party; or

(b)   the Receiving Party can show by reasonably convincing evidence was already in
      its possession from a source other than Company X at the date of its receipt; or

c)    has been disclosed to the Receiving Party under no confidentiality obligation by a
      third party legally entitled to do so and which has not received it directly or indirectly
      from Company X; or

d)    the Receiving Party can demonstrate by reasonably convincing evidence that it was
      developed without benefit of the Proprietary Information disclosed hereunder by
      Company X before or after disclosure.

      In the event that the Receiving Party or its advisers are requested or required by
      law, regulation, supervisory authority or other applicable judicial or governmental
      order to disclose any Proprietary Information, the Receiving Party will provide
      Company X with prompt written notice of such request or requirement so that
      Company X may seek an appropriate protective order. If failing the entry of a
      protective order, the Receiving Party is, in the opinion of its counsel, compelled to
      disclose Proprietary Information, the Receiving Party may disclose that portion of
      the Proprietary Information that Company X 's counsel advises that the Receiving
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      Party is compelled to disclose and will exercise reasonable efforts to obtain
      assurance that confidential treatment will be accorded to that portion of the
      Proprietary Information that is being disclosed. In any event, the Receiving Party
      will not oppose action by Company X to obtain an appropriate protective order or
      other reliable assurance that confidential treatment will be accorded the Proprietary
      Information.

6.    This Agreement shall expire one year after the Effective Date. The obligations of the
      Receiving Party with respect to the Proprietary Information shall cease three years
      after the termination of this Agreement for whatever reason.

7.    The Receiving Party shall return or destroy all Proprietary Information (including all
      copies, notes and/or extracts thereof) furnished by Company X and COMPANY Y
      pursuant to this Agreement upon request of Company X. Unless Company X
      advises the Receiving Party otherwise in writing, any analyses, compilations,
      technical drawings, studies or other documents incorporating or utilizing the
      Company X’s Proprietary Information and prepared by the Receiving Party shall be
      destroyed or, in the case of digital or electronic media, permanently deleted.

8.    Until the earliest of (1) the execution by the Receiving Party of a definitive
      agreement regarding a Transaction with Company X or (2) three years from the
      date of this agreement, the Receiving Party agrees not to initiate or maintain
      contact (except for those contacts made in the ordinary course of business) with
      any officer, director or employee of Company X regarding the Company X's
      business, operation, prospects or finances, except with the express permission of
      Company X. It is understood that COMPANY Y will arrange for appropriate
      contacts for due diligence purposes.

9.    The Receiving Party shall not solicit for employment any of the current employees
      of Company X to whom the Receiving Party has been directly or indirectly
      introduced or otherwise had contact with as a result of its consideration of the
      Potential Transaction so long as they are employed by Company X or solicit any
      customers, clients, or accounts of Company X, during the period in which there are
      discussions conducted pursuant hereto and for a period of one year thereafter,
      without the prior written consent of Company X.

10.   This agreement shall be governed by and interpreted under the laws of Belgium,
      excluding its conflict of laws and principles. All disputes arising in connection with
      the interpretation, the performance and/or the termination of this Agreement shall
      be finally settled under the Rules of Conciliation and Arbitration of the
      International Chamber of Commerce by one or more arbitrators appointed in
      accordance with the said Rules. Arbitration shall be conducted in English
      language and shall be held in Paris (France). The foregoing is without prejudice
      to Company X’s rights to seek injunctions and other relief in any appropriate
      court, to the extent such relief is not available in arbitration.

11.   This Agreement shall not restrict Company X from using or disclosing elsewhere its
      Proprietary Information.
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      12.    This Agreement is the entire understanding between the parties concerning the
             subject matter of this Agreement and supersedes all previous communications,
             understandings or representations, whether written or oral.

      13.    This Agreement may not be superseded, amended or modified except by a written
             agreement signed by both parties.

      14.    Company X makes no warranty or representation as to the accuracy or
             completeness of the Proprietary Information and shall have no liability to the
             Receiving Party resulting from the Receiving Party’s use of the Proprietary
             Information.

      15.    This Agreement does not obligate either party to enter into a possible agreement
             with respect to the Potential Transaction, and neither party shall incur any legal
             obligation of any kind whatsoever other than as set forth in this Agreement.

      16.    No waiver by Company X of any provision of this Agreement shall constitute a
             waiver of any other provision nor shall any waiver constitute a continuing waiver. If
             any provision of this Agreement is declared invalid or unenforceable, all remaining
             portions of this Agreement shall continue in full force and effect as if this Agreement
             had been executed without the invalid provision. In no event shall Company X be
             liable for incidental or consequential damages arising from or connected to the
             Proprietary Information transferred hereunder.


THIS AGREEMENT was signed by each party’s authorized representative on the Effective
Date.


_______________________________                     Company X


By:   ____________________________                  By:     ____________________________

				
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Description: Employee Proprietary Information Agreement document sample