/Docs/F/US/00/Agt/Acquire/Shares/MSPA/Annex/NDA/0.md
| ANCILLARY DOCUMENT A | = | |
| Doc.Ti | = | Confidentiality Agreement |
| Ti | = | Effective Date: {NDA.EffectiveDate.YMD} |
| 0.1.sec | = | {Buyer.N/1/2} |
| 0.2.sec | = | Attention: {Buyer.Contact.Name.Full} |
| = | ||
| 0.3.sec | = | Ladies and Gentlemen: |
| 0.4.sec | = | In connection with your consideration of a possible negotiated transaction (“{_Transaction}”) with {Company.Name.Full} (the “{_Company}”), we may provide information to you concerning our business, financial condition, operations, assets, and liabilities. As a condition to any such information being furnished to you or your {_Representatives}, you agree to treat any such information in accordance with, and to otherwise comply with, the terms and conditions set forth in this agreement. |
| 0. | = | [G/Z/paras/s4] |
| Def.Ti | = | Certain Defined Terms |
| Def.0.sec | = | As used in this agreement, |
| Def.1.sec | = | the term “{_Company}” means, as to any person, such person’s affiliates, and its and their directors, officers, managers, general partners, members, employees and agents, advisors (including without limitation, financial advisors, legal counsel, and accountants), and controlling persons; the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and the term “person” means natural persons and all legal persons, including, without limitation, any corporation, general or limited partnership, limited liability company, trust, or other entity or company. |
| Def.2.sec | = | the term “{_Evaluation_Material}” means all information concerning the {_Company} or its subsidiaries (whether furnished before or after the date hereof, whether prepared by the {_Company}, its {_Representatives}, or otherwise, whether or not marked as being confidential and regardless of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your {_Representatives} by or on behalf of the {_Company}. The term “{_Evaluation_Material}” also includes all notes, analyses, compilations, studies, interpretations, and other documents prepared by you or your {_Representatives} that contain, reflect, or are based upon, in whole or in part, the information that the {_Company} or the {_Company}’s {_Representatives} furnish to you or your {_Representatives}. The term “{_Evaluation_Material}” does not include information that (i) has become generally known to the public other than as a result of a disclosure by the {_Company} or the {_Company}’s {_Representatives}, (ii) 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 contractual, legal, or fiduciary obligation of confidentiality to, the {_Company} or any other person with respect to such information, or (iii) has become available to you on a nonconfidential basis from a source other than the {_Company} or any of the {_Company}’s {_Representatives} if such source was not bound by a confidentiality agreement with, or other contractual, legal, or fiduciary obligation of confidentiality to, the {_Company} or any other person with respect to such information. |
| Def. | = | [G/Z/ol-a/s2] |
| Conf.Ti | = | Use of {_Evaluation_Material} and Confidentiality |
| Conf.sec | = | You will use the {_Evaluation_Material} solely for the purpose of evaluating and negotiating the terms of a {_Transaction}, will keep the {_Evaluation_Material} strictly confidential, and will not disclose any of the {_Evaluation_Material} in any manner whatsoever without the prior written consent of the {_Company}; provided, however, that you may disclose the {_Evaluation_Material} to your {_Representatives} who agree to use the {_Evaluation_Material} solely for the purpose of evaluating and negotiating the terms of a {_Transaction}, to keep the {_Evaluation_Material} strictly confidential, and not to disclose any of the {_Evaluation_Material} in any manner whatsoever without the prior written consent of the {_Company}; provided, further, that such {_Representatives} are provided with a copy of this Agreement and agree to be bound by the terms of this Agreement to the same extent as if they were parties hereto. In any event, you will be responsible for any breach of this agreement by any of your {_Representatives} and you agree, at your sole expense, to take all reasonable measures to assure that your {_Representatives} do not make any prohibited or unauthorized disclosure or use (including in legal proceedings) of the {_Evaluation_Material}. |
| Conf. | = | [G/Z/ol/Base] |
| Conf-Transaction.Ti | = | Nondisclosure of Transaction |
| Conf-Transaction.sec | = | Except as set forth in Paragraph 4, you agree that without our prior written consent, neither you nor any of your {_Representatives} will disclose to any other person the fact that the {_Evaluation_Material} has been made available, the fact that discussions or negotiations concerning any {_Transaction} are or may be taking place, or have taken place, or any of the terms, conditions, or other matters discussed with respect thereto. Without limiting the generality of the foregoing, you agree that neither you nor any of your {_Representatives} will enter into any discussions or any agreement, understanding, or arrangement with any person regarding participation by that person or others in any {_Transaction}. |
| Conf-Transaction. | = | [G/Z/ol/Base] |
| Except-Compelled.Ti | = | Legally Compelled Disclosure |
| Except-Compelled.sec | = | If you or any of your {_Representatives} is required, in the written opinion of its legal counsel who has been informed of the relevant facts, by law or the rules of any securities exchange to which you or any such {_Representative} is subject, or in any judicial, administrative, or other legal proceeding, or pursuant to subpoena, civil investigative demand, or other compulsory process, to disclose any of the {_Evaluation_Material} or any {_Transaction}, you and your {_Representative} shall provide the {_Company} with prompt written notice of any such requirement, to the extent you and it may legally do so, so that the {_Company} may seek a protective order or other appropriate remedy, and will consult with the {_Company} with respect to the {_Company} or you (or such {_Representative}) taking steps to resist or narrow the scope of such required disclosure. If, in the absence of a protective order or other remedy or the receipt of a waiver by the {_Company}, you or any of your {_Representatives} are nonetheless, in the further written opinion of legal counsel, legally compelled to disclose {_Evaluation_Material} to any tribunal or other authority or else stand liable for contempt or suffer other censure or penalty, you (or such {_Representative}) may disclose only that portion of the {_Evaluation_Material} that such counsel advises is legally required to be disclosed, provided that you (or such {_Representative}) exercise best efforts to preserve the confidentiality of the {_Evaluation_Material}, including, without limitation, by cooperating with the {_Company} to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the {_Evaluation_Material} by such tribunal or other authority. |
| Except-Compelled. | = | [G/Z/ol/Base] |
| Life.Ti | = | Termination of Discussions; Return of Evaluation Material |
| Life.1.sec | = | If you determine that you do not wish to proceed with a {_Transaction}, you will promptly inform the {_Company} of that determination. In that case, or at any time upon the request of the {_Company} for any reason, you will promptly, and in any event no later than 30 days after the request, deliver to the {_Company} or, at the {_Company}’s option, destroy all {_Evaluation_Material} (and all copies, extracts, or other reproductions thereof), whether in paper, electronic, or other form or media. In the event of such a determination or request, all {_Evaluation_Material} prepared by you or your {_Representatives} will be destroyed within such 30-day period and no copy, extract, or other reproduction thereof will be retained, whether in paper, electronic, or other form or media. |
| Life.2.sec | = | Notwithstanding the foregoing, you may retain data or electronic records containing {_Evaluation_Material} for the purposes of backup, recovery, contingency planning, or business continuity planning so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not accessed except as required for backup, recovery, contingency planning, or business continuity purposes. If such data or records are restored or otherwise become accessible, you agree to permanently delete them. |
| Life.3.sec | = | Through an authorized supervising officer, you shall certify in writing to the {_Company} the destruction of the {_Evaluation_Material}, including that prepared by you or your {_Representatives}, promptly after such destruction occurs. Notwithstanding the return or destruction of the {_Evaluation_Material}, you and your {_Representatives} will continue to be bound by obligations of confidentiality and other obligations hereunder. |
| Life. | = | [G/Z/ol-a/s3] |
| Privileged-Info.Ti | = | Privileged Information |
| Privileged-Info.sec | = | Neither party intends that the provision of any {_Evaluation_Material} will be deemed to waive or in any manner diminish any attorney-client privilege, attorney work product protection, or other privilege or protection applicable to any such {_Evaluation_Material}. The parties acknowledge and agree that they (a) share common legal, as well as commercial, interests in all of the {_Evaluation_Material}, (b) are or may become joint defendants in legal proceedings to which such {_Evaluation_Material} relates, and (c) intend that all such privileges and protections remain intact should either party become subject to any legal proceedings to which such {_Evaluation_Material} is relevant. In furtherance of the foregoing, each party agrees not to claim or contend that the other party has waived any attorney-client privilege, attorney work product protection, or other privilege or protection by providing information pursuant to this agreement, or any subsequent definitive agreement regarding a {_Transaction} into which the parties may enter. |
| Privileged-Info. | = | [G/Z/ol/Base] |
| Limit-InfoNotAccurate.Ti | = | Completeness and Accuracy of {_Evaluation_Material} |
| Limit-InfoNotAccurate.sec | = | We reserve the right, in our sole discretion, to determine what information we will provide or withhold, as well as the times at which we will make such information available. Neither we nor any of our {_Representatives} have made or will make any representation or warranty, express or implied, as to the accuracy or completeness of the {_Evaluation_Material}. You agree that none of the {_Company}, its subsidiaries, or any of their respective {_Representatives} will have any liability to you or to your {_Representatives} relating to or resulting from the use of the {_Evaluation_Material} or any errors therein or omissions therefrom. You also agree that you are not entitled to rely on the accuracy or completeness of any {_Evaluation_Material} and that you will be entitled to rely solely on such representations or warranties regarding the {_Evaluation_Material} or the subject matter thereof as may be made in any definitive agreement relating to a {_Transaction}, when, as, and if entered into by the parties, and subject to such limitations and restrictions as may be specified therein. |
| Limit-InfoNotAccurate. | = | [G/Z/ol/Base] |
| Limit-Deal.Ti | = | Effect of Agreement |
| Limit-Deal.sec | = | No agreement providing for any {_Transaction} currently exists and none will be deemed to exist between the parties unless and until a definitive written agreement with respect to a {_Transaction} is negotiated, executed, and delivered with the intention of legally binding the parties and any other necessary parties. The parties agree that, unless and until a definitive agreement between them with respect to a {_Transaction} has been executed and delivered by them and any such other parties with the intention of being legally bound, neither party nor any of their respective affiliates will be under any obligation of any kind with respect to a {_Transaction}, including any obligation to commence or continue negotiations, by virtue of this agreement or any other written or oral expression with respect to such a {_Transaction} by the parties or any of their {_Representatives}. |
| Limit-Deal. | = | [G/Z/ol/Base] |
| ContactPerson.Ti | = | Designated Contact Person |
| ContactPerson.sec | = | All communications regarding any {_Transaction}, requests for additional information, requests for facility tours or management meetings, and discussions or questions regarding procedures will be directed exclusively to {Company.Contact.Name.Full}, and neither you nor any of your {_Representatives} will initiate or cause to be initiated any communication with any director, officer, or employee of the {_Company} or its subsidiaries, or their {_Representatives}, other than {Company.Contact.Name.Full}, concerning the {_Evaluation_Material} (including any requests to obtain or discuss any {_Evaluation_Material}) or any {_Transaction}. |
| ContactPerson. | = | [G/Z/ol/Base] |
| Nonsolicitation.Ti | = | Nonsolicitation |
| Nonsolicitation.sec | = | You agree that, for a period of {Conf.Period.Years} years from the date hereof, neither you nor any of your affiliates will, directly or indirectly, solicit or hire for employment any person who is currently, or at any time during the period commencing on the date hereof through the date you inform the {_Company} that you do not wish to proceed with a {_Transaction} becomes, an officer or employee of the {_Company} or any of its subsidiaries. |
| Nonsolicitation. | = | [G/Z/ol/Base] |
| Remedy.Ti | = | Remedies |
| Remedy.sec | = | You acknowledge and agree that money damages would not be a sufficient remedy for breach of this agreement by you or any of your {_Representatives} and that the {_Company} will be entitled to equitable relief, including injunctions and specific performance, as a remedy for any such breach without the necessity of posting any bond or other security and without proof of irreparable harm or of any actual damages. Such remedies will nonetheless not be deemed to be the exclusive remedies for a breach of this agreement and will be in addition to all other remedies available at law or in equity. |
| Remedy. | = | [G/Z/ol/Base] |
| Misc.Ti | = | Miscellaneous |
| Misc.Entire.Ti | = | Entire Agreement |
| Misc.Entire.sec | = | This agreement supersedes all prior agreements, whether written or oral, between the parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. |
| Misc.Entire. | = | [G/Z/ol/Base] |
| Misc.Amend.Ti | = | Modification |
| Misc.Amend.sec | = | This agreement may only be amended, supplemented, or otherwise modified by a writing executed by the parties. |
| Misc.Amend. | = | [G/Z/ol/Base] |
| Misc.Law.Ti | = | Governing Law |
| Misc.Law.sec | = | All matters relating to or arising out of this agreement or any {_Transaction} and the rights of the parties (sounding in contract, tort, or otherwise) will be governed by and construed and interpreted under the laws of {Law.State.the}, without regard to conflicts of laws principles that would require the application of any other law. |
| Misc.Law. | = | [G/Z/ol/Base] |
| Misc.Tribunal.Ti | = | Jurisdiction; Service of Process |
| Misc.Tribunal.sec | = | Any proceeding arising out of or relating to this agreement or any {_Transaction} shall be brought in {Tribunal.State.cl}, or, if it has or can acquire jurisdiction, in {Tribunal.USDC.cl}, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of such proceeding shall be heard and determined only in any such court, and agrees not to bring any proceeding arising out of or relating to this agreement in any other court. Each party acknowledges and agrees that this Paragraph 12(d) constitutes a voluntary and bargained-for agreement between the parties. Process in any proceeding referred to in the first sentence of this paragraph may be served on any party anywhere in the world. |
| Misc.Tribunal. | = | [G/Z/ol/Base] |
| Misc.Waive.Ti | = | No Waiver |
| Misc.Waive.sec | = | Neither any failure nor any delay by any party in exercising any right, power, or privilege under this agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (i) no claim or right arising out of this agreement can be waived by a party, in whole or in part, unless made in a writing signed by such party; (ii) a waiver given by a party will only be applicable to the specific instance for which it is given; and (iii) no notice to or demand on a party will (A) waive or otherwise affect any obligation of that party or (B) affect the right of the party giving such notice or demand to take further action without notice or demand as provided in this agreement or the documents referred to in this agreement. |
| Misc.Waive. | = | [G/Z/ol/Base] |
| Misc.Sever.Ti | = | Severability |
| Misc.Sever.sec | = | If any provision of this agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this agreement will remain in full force and effect. Any provision of this agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. |
| Misc.Sever. | = | [G/Z/ol/Base] |
| Misc.Counterpart.Ti | = | Counterparts/Electronic Signatures |
| Misc.Counterpart.sec | = | This agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, will be deemed to constitute one and the same agreement and will be effective when counterparts have been signed by each of the parties and delivered to the other parties. A manual signature whose image shall have been transmitted electronically will constitute an original signature for all purposes. The delivery of copies of this agreement, including executed signature pages, by electronic transmission will constitute effective delivery of this agreement for all purposes. |
| Misc.Counterpart. | = | [G/Z/ol/Base] |
| Misc.sec | = | |
| Misc. | = | [G/Z/ol/Base] |
| 00.1.sec | = | Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter will become a binding agreement between you and us. |
| 00.2.sec | = | Very truly yours, |
| 00.3.sec | = | {Company.US.Frame.Sign.Block} |
| = | ||
| 00.4.sec | = | Accepted and agreed as of the date first written above. |
| = | ||
| 00.5.sec | = | {Buyer.US.Frame.Sign.Block} |
| 00. | = | [G/Z/paras/s5] |
| xlist | = | |
| = | [G/Z/ol/Base] | |