CONFIDENTIALITY
AGREEMENT
(Insert Name)
Attention:
Re: Confidentiality Agreement
Gentlemen:
You have requested information from
________________________ (the "Company") in connection with our
consideration of a possible transaction involving you and the Company. Because
we are furnishing such information to you, we are requiring that you agree, as
set forth below, to treat confidentially such information, and any other
information we or our agents furnish to you, whether furnished before or after
the date of this letter (collectively, the "Confidential Material").
You agree that the Confidential Material will be used
only for purposes of considering the transaction referred to in the first
paragraph of this letter and will not be used by you in any way detrimental to
the Company. You also agree that the Confidential Material will be kept confidential
by you and your agents; provided, however, that (I) any of such information may
be disclosed to your officers, directors, general partners, employees, counsel,
investment bankers and other of your representatives who need to know such
information for the purpose of evaluating a possible transaction between us (it
being understood that you will direct such officers, directors, general
partners, employees, counsel, investment bankers and other representatives to
treat such information confidentially), and (2) any disclosure of such
information may be made to which the Company consents in writing.
Without
the prior written consent of the Company, you will not, and will direct your
officers, directors, general partners, employees, counsel, investment bankers
and other representatives not to, disclose to any person either the fact that
discussions or negotiations are taking place concerning a possible transaction
or any of the terms, conditions or other facts with respect to any such
possible transaction, including the status thereof. The term "person"
as used in this letter shall be broadly interpreted to include, without
limitation, any corporation, company, group, partnership or individual.
In
the event that you or any of your affiliates or agents are requested or
required (by oral questions, interrogatories, requests for information or
documents, subpoena, Confidential or similar process) to disclose any
Confidential Material, it is agreed that you will cooperate with the Company
and provide it with prompt notice of such request(s) so that the Company may
seek an appropriate protective order and/or waive compliance by you with the
provisions of this agreement. If, in the absence of a protective order or he
receipt of a waiver hereunder, you or your affiliates or agents
are
nonetheless in the opinion of your counsel, legally required to disclose
Confidential Material to any tribunal or else stand liable for contempt or
suffer other censure or penalty, you may disclose such information to such
tribunal without liability hereunder.
You
hereby acknowledge that the Confidential Material is being furnished to you in
consideration of your agreement that you will not submit any proposal for a
transaction involving you (or any of your affiliates) and the Company or any of
its subsidiaries, any significant portion of the assets of the Company or its
subsidiaries or one involving any of the Company's security holders unless the
Company's Board of Directors shall have consented in (nor any of your
affiliates, successors or other representatives) will, directly or indirectly,
acquire or offer to acquire, or assist, advise or encourage any other person or
persons in acquiring, in any manner, for a period of (insert time period) from
the date of this Agreement, any securities of the Company, except pursuant to a
transaction approved by the Company's Board of Directors. You also agree that
the Company shall be entitled to equitable relief, including injunction, in the
event of any breach of the provisions of this paragraph and that you shall not
oppose the granting of such relief.
In
the event that no transaction is effected involving you and the Company after
you have been furnished with Confidential Material, you will promptly, upon the
request of the Company, deliver to the Company the Confidential Material and
any notes relating thereto, without retaining any copy thereof.
The
term "Confidential Material" does not include information which (I)
becomes generally advisable to the public other than as a result of a
disclosure by you or your representatives, (2) was available to you on a non
confidential basis prior to its disclosure by the Company or its
representatives, or (3) becomes available to you on a non confidential basis
from a source other than the Company or its representatives, provided that such
source is not bound by a confidentiality agreement with the Company or its
representatives. The term "affiliate" as used in this letter shall
have the meaning ascribed to such term in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.
Although
we have endeavored to include in the Confidential Material information known to
us which we believe to be relevant for the purpose of your investigation, you
understand that we do not make any representation or warranty as to the
accuracy or completeness of the Confidential 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 Confidential Material
supplied by us or our representatives.
It
is further understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof not shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege.
You
agree that unless and until a definitive agreement between the Company and you
with respect to any transaction referred to in the first paragraph of this
letter has been executed and delivered, neither the Company nor you will be
under any legal obligation of any kind whatsoever with respect to such a
transaction, by virtue of any other written or oral expression with respect to
such a transaction by any of its officers, directors, general partners,
employees, counsel, financial advisors or other representatives except for the
matters specifically agreed to in this letter. The agreement set forth in this
paragraph may only be modified or waived by a separate writing by the Company
and you expressly so modifying or waiving such agreement.
This
letter shall be governed by, and construed in accordance with, the laws of the
State of _________________________.
If
you are in agreement with the foregoing, please so indicate by signing and
returning one copy of this letter, whereupon this letter will constitute our
agreement with respect to the subject matter hereof.
Very
truly yours,
_____________________
(The Company)
By:
Title:
CONFIRMED
AND AGREED TO:
________________________________
__________________
Name
and Title Date
