Fill and Sign the Agreementhtm Secgov Form

5.10A[2] Nondisclosure Agreement A form of nondisclosure agreement that may be acceptable to potential buyers and sellers follows. Confidentiality Agreement[Company A], its affiliates, successors and assigns (all of the foregoing entities are collectively referred to herein as "Company A"), and [Company B], its affiliates, successors and assigns (all of the foregoing entities are collectively referred to herein as "Company B"), desire to enter into discussions with respect to a potential business transaction (the "Transaction"). In connection with the Transaction and discussions relating to it, Company A will provide Company B, either orally, in writing or by inspection, certain information, materials and documents deemed by Company A to be confidential and/or proprietary, regarding Company A, its business, financial results and pro formas, know-how, techniques and processes related to the development, preparation, formulation or presentation of [insert nature of business], business and trade secrets, methods of doing business, marketing techniques, and other secret, confidential and/or proprietary matters relating to Company A's business (collectively the "Confidential Information"). As a condition to Company A furnishing Company B with the Confidential Information and/or entering into discussions regarding the Transaction, Company B hereby agrees as follows: All Confidential Information furnished to Company B in connection with the Transaction, as well as the existence of the Transaction and the discussions relating thereto, shall be deemed confidential and shall be kept in strict confidence under appropriate safeguards by Company B. The term "Confidential Information," as used herein, does not include information which (i) was lawfully in Company B's possession prior to any disclosure by Company A, (ii) is or becomes generally available to the public other than as a result of disclosure by Company B, Company B's employees, agents, representatives or others acting on Company B's behalf, (iii) is obtained by Company B from a third party who, to Company B's knowledge, has disclosed such information without breaching a contractual or legal duty to Company A, or (iv) is developed by Company B without use of Confidential Information. Without Company A's prior written consent, Company B shall not, directly or indirectly: (i) disclose or reveal any Confidential Information to any person, firm or entity except to a limited group of Company B's officers, employees, attorneys and agents who are actively and directly participating in the Transaction or the negotiations relating thereto (collectively, the "Recipients"), each of whom shall be informed by Company B of the confidential nature of the Confidential Information; (ii) use the Confidential Information for any purpose other than in connection with the Transaction; (iii) use the Confidential Information for the benefit of any entity other than Company A; or (iv) disclose to any person or entity the terms, conditions or other facts with respect to the Transaction (including the existence and status thereof) or that Confidential Information has been made available to Company B. Company B shall be responsible for any disclosure by the Recipients of the Confidential Information, or the existence, content or status of the Transaction, and Company B shall be responsible for enforcing the confidentiality of the Confidential Information and will take such action as is necessary to prevent any disclosure thereof by any of the Recipients. Without Company B's prior written consent, Company A shall not, directly or indirectly, disclose to any person that confidential information has been made available to Company B, that Company B is considering the transaction, or any of the terms, conditions or other facts with respect to Company B's involvement in the transaction, including the existence and status thereof.Company B acknowledges and agrees that in the event of any breach of this letter agreement by it, and without prejudice to any rights and remedies otherwise available to Company A, Company A shall be entitled (i) to equitable relief by way of injunction, and (ii) to compel specific performance without the need of proof of actual damages. Company B further agrees to waive any requirement for the securing or posting of any bond in connection with such remedies. No failure or delay by Company A 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 hereunder. Upon written notice from Company A, Company B will promptly deliver to Company A all copies of the Confidential Information and all written or tangible materials containing or reflecting any information contained in the Confidential Information without retaining any copies, summaries, analyses or extracts thereof. All documents, memoranda, analyses, summaries, compilations, notes and other writings whatsoever prepared by Company B and the Recipients based on the information contained in the Confidential Information shall be destroyed and if requested by Company A certification thereof shall be given by an officer of Company B. Should the Transaction require or entail disclosure of any of Company B's confidential or proprietary information to Company A, Company A agrees to the same confidentiality and non-use obligations as are imposed on Company B under this letter agreement. This letter agreement shall be binding upon Company B's successors and assigns and shall inure to the benefit of and be enforceable by Company A's successors and assigns. The provisions of this letter agreement are intended to be interpreted and construed in a manner so as to make such provisions valid, binding and enforceable. In the event that any provision of this letter agreement is determined to be partially or wholly invalid, or illegal, or if such provision cannot be modified or restricted in such a manner, then it shall be deemed to be excised from this letter agreement and the validity, binding effect and enforceability of the remaining provisions of this letter agreement shall not be affected or impaired in any manner. This letter agreement constitutes the complete agreement of the parties and supersedes any and all prior agreements, transactions and understandings, oral or written, between the parties concerning the subject matter hereof. This letter agreement shall be construed (both as to validity and performance) and enforced in accordance with, and governed by, the laws of [insert jurisdiction of choice] applicable to agreements made and to be performed wholly within such jurisdiction, notwithstanding any choice of law principles, statutes or rules to the contrary. This letter agreement may be waived, amended or modified only by an instrument in writing signed by both parties or by the party against which such waiver, amendment or modification is sought to be enforced, and such written instrument shall specifically set forth the provisions of this letter agreement that are to be so waived, amended or modified. Company B's obligations hereunder shall expire two (2) years after the date hereof; provided, however, that nothing herein shall abrogate or diminish the rights and protections afforded to Company A with respect to any Confidential Information under any applicable state trade secrets laws; and provided further that Company B shall not release or publicly disclose any Confidential Information that is not at such time otherwise publicly available. Company A acknowledges that Company B and its affiliates are engaged in a broad range of businesses that may be similar to, or identical with Company A's business and that Company B and its affiliates have considered, and will consider, the acquisition of, or joint ventures with, other persons or entities that are engaged in businesses similar to, or identical with, Company A's business. Accordingly, Company A agrees that neither this Agreement, nor Company B's consideration of the proposed transaction, will impact or restrict Company B's or its affiliates operation of such businesses or their consideration of, or participation in, such transactions. In addition, Company A acknowledges that Company B has informed Company A that Company B and its affiliates have worked on, and will continue to work on, the development of a wide variety of products and techniques, including products and techniques that may be similar to Company A's products and techniques, and that neither this Agreement, nor Company B's consideration of the proposed transaction shall restrict Company B's use of the results of such development.Please indicate your agreement with the foregoing by executing the accompanying copy of this letter agreement and returning it to us, whereupon it shall constitute a binding agreement as of the date first above written. Very truly yours, COMPANY A By: [Name] Its Chairman READ, ACCEPTED AND AGREED FOR COMPANY B By: [Name] Its [Title]