Non-Disclosure Agreement (NDA)
This Non-disclosure Agreement (this "Agreement"), dated as of Effective date (the "Effective Date"), is by and between Issuer (Name) ("Issuer"), a Issuer entity type , and Recipient (Name) , a Recipient entity type (the "Recipient").
The Issuer proposes to engage in discussions with Recipient regarding information respecting the Issuer which may not have been disclosed to Issuer's shareholders generally. To comply with the regulations governing fair disclosure and to allow Recipient to have an observer at meetings of Issuer's Board of Directors, Recipient, intending to be legally bound, hereby covenants and agrees with the Issuer as follows:
Proprietary information.
The term "Proprietary Information" as used herein means any information regarding the Issuer and its subsidiaries and/or affiliates (specifically including, but not limited to, customer and employee information, business methods, and general operations and events) obtained by Recipient from or through the Issuer, but does not include information which
becomes generally available to the public other than as a result of a disclosure by Recipient or its representatives;
was within Recipient's possession prior to its being furnished to Recipient by or on behalf of the Issuer pursuant hereto, provided that the source of such information was not known to Recipient to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Issuer or any other party with respect to such information;
became available to Recipient on a non-confidential basis from a source other than the Issuer, provided such source is not bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Issuer or any other party with respect to such information; or
was independently developed by Recipient without reference to the proprietary information, provided such independent development can reasonably be proven by Recipient by written records.
Restrictions on use and disclosure.
Recipient agrees that it shall not, directly or indirectly, disclose, sell, give, or otherwise transfer or make available Proprietary Information to any third party, including any of Recipient's affiliates, except as required by law or as provided in Section 4. herein. Recipient shall use Proprietary Information only for the purpose of providing comments to Issuer, having an observer at meetings of Issuer's Board meetings, and considering the investment of Recipient or its affiliates in Issuer (excluding in any event transactions prohibited by this Section 2).
Recipient hereby agrees to restrict disclosure or use of Proprietary Information to only those of its employees who are directly involved in performing its obligations under this Agreement, shall restrict use of Proprietary Information by such employees to the purposes expressly set forth in this Agreement and shall cause any such employees to comply with the obligations of Recipient herein.
Upon termination of this Agreement or Recipient's ceasing to have an observer at meetings of the Board of Directors of Issuer, whichever is earlier, Recipient shall return to Issuer or destroy any Proprietary Information, including all reproductions made thereof, if any. Recipient shall in no event retain Proprietary Information in any form, except that which is reasonably necessary for tax, audit or legal requirements.
Acknowledgment of confidential nature.
Recipient acknowledges and agrees that the Proprietary Information is entrusted to Recipient after being informed of its confidential and secret status by the Issuer, has been developed by the Issuer for and on behalf of the Issuer through substantial expenditures of time, effort and money and is used in its business, and is of such value and nature as to make it reasonable and necessary to protect and preserve the confidentiality and secrecy of the Proprietary Information. Further, Recipient acknowledges that the disclosure of the Proprietary Information could cause substantial injury and loss of profits and goodwill to the Issuer as well as be a violation of state, federal and local laws, rules and regulations.
Disclosure to representatives.
Recipient may disclose the Proprietary Information to its attorneys, advisors, representatives (collectively, the "Representatives") who need to know such information for the purposes of assisting Recipient in its analysis of the Proprietary Information (it being understood that (a) each such Representative shall be informed by the Recipient of the confidential nature of the Proprietary Information, shall receive a copy of this Agreement and shall be directed by Recipient to not use or disclose the Proprietary Information and (b) in any event, the Recipient shall be responsible for any breach of this Agreement by the Representatives). All files, records, documents, information, data and similar items relating to the Proprietary Information, whether prepared by Recipient or otherwise coming into Recipient's possession, shall remain the exclusive property of the Issuer.
Required disclosures.
If Recipient is requested in any legal proceeding to disclose any Proprietary Information, it will give the Issuer prompt notice of such request so that the Issuer may seek an appropriate protective order. If, in the absence of a protective order, Recipient is nonetheless compelled to disclose Proprietary Information, by a court or governmental body having the apparent authority to order such disclosure, it may disclose the Proprietary Information without liability hereunder; provided however, that Recipient gives the Issuer written notice of the Proprietary Information to be disclosed as far in advance of its disclosure as is practicable and, at the Issuer's request, Recipient uses its best efforts to obtain assurances that confidential treatment will be accorded to the Proprietary Information.
Injunctive relief.
Recipient recognizes and acknowledges that the ascertainment of damages in the event of its breach of any provision of this Agreement would be difficult, and Recipient agrees that the Issuer, in addition to all other remedies it may have, shall have the right to injunctive relief if there is such a breach.
Binding effect.
This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This is not a third party beneficiary contract. No person or entity other than a party signing this Agreement shall have any rights under this Agreement.
Amendments and waivers.
No modification or amendment of this Agreement or any waiver of any provision hereof shall be of any force or effect except by a written document signed by both parties which specifically references this Agreement.
Governing law and jurisdiction.
This Agreement shall be subject to, and interpreted by and in accordance with, the laws (excluding conflict of law provisions) of the State of Governing law state . Any cause of action for a breach or enforcement of, or a declaratory judgment respecting, this Agreement may be commenced and maintained in the Primary court or the Secondary court. Each of the parties consents to the jurisdictions of such courts (and of the appropriate appellate courts) in any action or proceeding concerning this Agreement and waives any objections to such venues. The parties hereto irrevocably consent to the service of process out of any of the aforementioned courts in any such action or proceeding by the delivery of copies thereof by overnight courier to the address for such party to which notices are deliverable hereunder. Any such service of process shall be effective upon delivery. Nothing herein shall affect the right to serve process in any other manner permitted by applicable law.
The parties hereto hereby waive any right to stay or dismiss any action or proceeding under or in connection with this Confidentiality Agreement brought before the foregoing courts on the basis of (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason, or that it or any of its property is immune from the above-described legal process, (b) any claim that such action or proceeding is brought in an inconvenient forum, that venue for the action or proceeding is improper or that this Confidentiality Agreement may not be enforced in or by such courts, or (c) any other defense that would hinder or delay the levy, execution or collection of any amount to which any party hereto is entitled pursuant to any final judgment of any court having jurisdiction. Process in any action or proceeding referred to in this paragraph may be served on any party anywhere in the world.
Notices.
All notices, consents, requests, instructions, approvals and other communications provided for herein shall be in writing and shall be deemed validly given, made or served, if (a) sent by email to the email addresses specified in this subsection or (b) if given by any other means, when actually received during normal business hours at the address specified in this subsection:
if to the Issuer:
Issuer (Name)
Issuer (Address (multi-line))
Attention: Issuer notice contact
Email: Issuer notice email
With a copy (which shall not constitute notice) to:
Issuer counsel name
Issuer counsel address
Attention: Issuer counsel contact
Email: Issuer counsel email
if to Recipient:
Recipient (Name)
Recipient (Address (multi-line))
Attention: Recipient notice contact
Email: Recipient notice email
With a copy (which shall not constitute notice) to:
Recipient counsel
Recipient counsel address
Attention: Recipient counsel contact
Email: Recipient counsel email
This Agreement is the entire Agreement of the parties respecting the subject matter hereof. There are no other agreements, representations or warranties, whether oral or written, respecting the subject matter hereof. No course of prior dealings involving any of the parties hereto and no usage of trade shall be relevant or advisable to interpret, supplement, explain or vary any of the terms of this Agreement, except as expressly provided herein. This Agreement, and all the provisions of this Agreement, shall be deemed drafted by all of the parties hereto. This Agreement shall not be interpreted strictly for or against any party, but solely in accordance with the fair meaning of the provisions hereof to effectuate the purposes and intent of this Agreement.
Term.
This Agreement shall come into effect on the Effective Date and shall continue in full force and effect while Recipient has any observer in regard to the Board of Directors of Issuer and for a period of Post-termination period thereafter.
Assignment.
This Confidentiality Agreement shall not be assignable by operation of Law or otherwise by a party without the consent of the other party. Any purported assignment without such consent is void ab initio. Subject to the foregoing sentence, this Confidentiality Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the permitted successors and assigns of each party.
Interpretation.
For purposes of this Confidentiality Agreement, whenever the context requires: (i) the singular number shall include the plural, and vice versa; (ii) the masculine gender shall include the feminine and neuter genders; (iii) the feminine gender shall include the masculine and neuter genders; and (iv) the neuter gender shall include masculine and feminine genders. As used in this Confidentiality Agreement, the words "include" and "including," and words of similar meaning, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation." Except as otherwise indicated, all references in this Confidentiality Agreement to "Sections" are intended to refer to Sections of this Confidentiality Agreement. The term "or" shall not be deemed to be exclusive. The words "hereof," "herein" and "hereunder" and words of similar import, when used in this Confidentiality Agreement, refer to this Confidentiality Agreement as a whole and not to any particular provision of this Confidentiality Agreement. References in this Confidentiality Agreement to "as of the date hereof," "as of the date of this Confidentiality Agreement" or words of similar import shall be deemed to mean "as of immediately prior to the execution and delivery of this Confidentiality Agreement."
Legal representation.
Each party to this Confidentiality Agreement acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Confidentiality Agreement and that it has executed this Confidentiality Agreement with the advice of such counsel.
Counterparts.
This Confidentiality Agreement may be executed in separate counterparts (including by fax, .jpeg, .gif, .bmp and .pdf), each of which when so executed shall be an original, but all such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
Issuer (Name)
Issuer signatory name
Issuer signatory title
Recipient (Name)
Recipient signatory name
Recipient signatory title
