SAMPLE CONFIDENTIALITY AGREEMENT NEWCO, INC.
March 31, 1994
[Name of buyer] [Address of buyer]
Attention:
,
CONFIDENTIALITY AGREEMENT (Investor in Private Placement) Gentlemen: You have expressed an interest in exploring a possible investment in Newco, Inc. (the “Company”). As a condition to your being furnished such information, you agree to treat all information concerning the Company and its affiliates and subsidiaries which is furnished to you by or on behalf of the Company, whether furnished before, on or after the date of this agreement (herein collectively referred to as the “Evaluation Material”), in accordance with the provisions of this agreement, and to take or abstain from taking certain other actions as set forth herein: The term “Evaluation Material” shall not include information which: (i) was or becomes generally available to the public other than as a result of a disclosure by you or your directors, officers, affiliates, associates, partners, employees, agents or advisors (your “Representatives”); (ii) was or becomes available to you on a nonconfidential basis from a source other than the Company or its advisors provided that such source is not bound by a confidentiality agreement with, or other obligation of secrecy to, the Company; or (iii) was within your possession prior to its being furnished to you by or on behalf of the Company, provided that the source of such information was not bound by a confidentiality agreement with, or other obligation of secrecy to, the Company in respect thereof. You hereby agree that the Evaluation Material will not be used by you in any way detrimental to the Company and will be used solely for the purpose of evaluating a possible investment in the Company and you, and that the Evaluation Material will be kept confidential
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2 by you; provided, however, that any such Evaluation Material may be disclosed to your Representatives who need to know such information for the purpose of evaluating any such possible investment (it being agreed that your Representatives shall be informed by you of the confidential nature of such information and that by receiving such information they are agreeing to be bound by this agreement). You agree to be responsible for any breach of this agreement by any of your Representatives. If you are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose (i) any Evaluation Material, or (ii) any information relating to your opinion, judgment or recommendations concerning the Company or its affiliates or subsidiaries, you will provide the Company with prompt notice of such request and the documents and/or information requested thereby so that the Company may seek an appropriate protective order and/or waive your compliance with the provisions of this agreement. It is further agreed that, if in the absence of a protective order or the receipt of a waiver hereunder you are nonetheless, in the written opinion of your counsel, compelled to disclose Evaluation Material to any tribunal or else stand liable for contempt or suffer other censure or penalty, you may disclose to such tribunal without liability hereunder that portion of the Evaluation Material which your counsel advises in writing that you are compelled to disclose; provided, however, that you shall give the Company written notice of the information to be so disclosed as far in advance of its disclosure as is practicable and shall use your best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the information required to be disclosed as the Company designates. You acknowledge that you are aware that the U.S. securities laws prohibit any person who has material nonpublic information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. You agree that: (i) you will direct all inquiries and any requests for information concerning the Company to [Name of advisor], financial advisors to the Company; and (ii) you will have no discussion, correspondence or other contact concerning the Company or its securities or any investment with or concerning the Company or its securities or assets except with the Company and its financial advisors and designated representatives, or except as otherwise contemplated by this agreement. You further agree that the Company has established, and may amend unilaterally, procedures and guidelines (the “Procedures”) for the submission of proposals with respect to any investment in the Company. You agree to act in accordance with the Procedures and to be bound by the terms and conditions that may be established pursuant to the Procedures. You further agree that the Company shall be free to conduct the process for an investment involving the Company as it in its sole discretion shall determine and that, except as otherwise provided in a definitive agreement, you shall not have any claims against the Company, [Name of advisor], or
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3 any of their respective directors, officers, stockholders, affiliates, advisors or agents arising out of or relating to an investment involving the Company. In addition, without the prior written consent of the Company, you will not (and will direct your Representatives not to) disclose to any person either the fact that discussions or negotiations are taking place concerning a possible investment between the Company and you or any of the terms, conditions or other facts with respect to any such possible investment, including the status thereof, unless in the advice of counsel disclosure is required to be made pursuant to applicable law or regulation, provided that if you propose to make any disclosure based upon the advice of counsel, you will advise and consult with the Company prior to such disclosure. If an investment in the Company by you is not consummated after a reasonable time or upon the Company’s request, you shall promptly redeliver to the Company all Evaluation Material and all written material containing or reflecting any information contained in the Evaluation Material (whether prepared by the Company or otherwise and whether in your possession or the possession of your Representatives), and will not retain any copies, extracts or other reproductions in whole or in part of such written material. All documents, memoranda, notes and other writings whatsoever (including all copies, extracts or other reproductions), prepared by you or your Representatives based on the information contained in the Evaluation Material shall be destroyed, and such destruction shall be certified in writing to the Company by an authorized Representative supervising such destruction. The redelivery of such material shall not relieve the obligation of confidentiality or any other obligations hereunder. Although the Company has endeavored to include in the Evaluation Material information known to the Company which it believes relevant for the purpose of your investigation, you understand that neither the Company nor its representatives makes any representation or warranty as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company nor its representatives shall have any liability to you or any of your Representatives resulting from the use of the Evaluation Material supplied by the Company or its representatives. You agree that no failure or delay by the Company in exercising any right, power, or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. You agree that money damages would not be a sufficient remedy for any breach of this agreement and that the Company shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and you further agree to waive any requirement for the securing or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of this agreement, but shall be in addition to all other remedies available at law or equity.
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4 This agreement shall be governed by and construed in accordance with the internal laws of the State of [Delaware], without giving effect to the conflict of laws principles thereof.
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5 If you are in agreement with the foregoing, please so indicate by signing and returning one copy of this agreement, whereupon it will constitute our agreement with respect to the subject matter hereof. Very truly yours, [Name of offeree]
By:
Confirmed and Agreed to: NEWCO INC. By: Date:
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