"DRAFT PROPRIETARY INFORMATION AGREEMENT THIS AGREEMENT made this day of “Effective Date” by and be"
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 2 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 3 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. 4 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: ____________________________