Fill and Sign the Confidentiality Agreement 3par Inc and Dell Inc Form

CONFIDENTIALITY AGREEMENT (Between Parties Contemplating a Transaction) _____________________________ (Date) Attn: _____________________________ Gentlemen: _____________________________ This confidentiality agreement (this "Agreement") is entered into to facilitate the evaluation of a possible business transaction involving _____________________________ (the "Buyer") and _____________________________ (the "Seller"). Buyer and Seller may be referred to in this Agreement individually as a "Party," and collectively as the "Parties." In consideration for and as a condition to the Parties entering into discussions with one anothe r and being furnished information concerning the other Party, the Parties agree as follows: Buyer will deliver to Seller, upon the execution and delivery of this Agreement by both Parties, certain information (written and oral) respecting the business, properties, and opera tions of Buyer. That information, together with analyses, compilations, studies, or other documents or records as may be prepared by you, your agents, representatives (including attorneys, accountants and financial advisors), or employees which contain or otherwise reflect or are generate d from that information, or your review of Buyer, are referred to as the "Buyer's Evaluation Material." You agree and acknowledge that the Buyer's Evaluation Material is of a proprietary and confi dential nature and damage could result to Buyer if that information is disclosed to any thi rd-party. The Buyer's Evaluation Material has been furnished to you subject to, and in consideration of, your agreement to maintain its confidentiality and to use it solely for an intended evaluation and for no other purpose, including any way, directly or indirectly, detrimental to Buyer or any of its affiliates and subsidiaries. You agree not to disclose it to others, except as authorized in this Agreement. Seller will deliver to Buyer, upon the execution and delivery of this Agreement by both Parties, certain information (written and oral) respecting the business, properties, and opera tions of Seller. That information, together with analyses, compilations, studies, or other documents or records prepared by us, our agents, representatives (including attorneys, accountants and financial advisors), or employees which contain or otherwise reflect or are generated from that informa tion, or our review of Seller, are referred to as the "Seller's Evaluation Material." We agree and acknowledge that the Seller's Evaluation Material is of a proprietary and confidentia l nature and that damage could result to Seller if the information is disclosed to any third-pa rty. The Seller's Evaluation Material has been furnished to us subject to, and in consideration of, our agreeme nt to maintain its confidentiality and to use it solely for an evaluation and for no ot her purpose, including any way, directly, or indirectly, detrimental to Seller or any of its affil iates or subsidiaries. We agree not to disclose it to others, except as authorized in this Agreement. Each Party's obligation of confidentiality, non-use, and non-disclosure under this Agreement shall not prevent its use or disclosure to others of information which: (a) is now in the public domain, or later enters the public domain through no violation by a Party, or its agents, of a Party's obligations under this Agreement; (b) is required to be disclosed as a result of any applicable law, rule, or regulation of any governmental authority; or, (c) is lawfully obta ined from a source (other than the other Party, and its affiliates or representatives) in accordanc e with the terms and conditions, if any, imposed upon a Party by a source respecting the use and disclosure of the information provided. Each Party may, only to the extent necessary for making the contemplated evaluat ion, disclose the Evaluation Material to such of its directors, officers, employees, advisors, and investors who need to know the contents of the information for the purpose described in this Agreement, provided those individuals recognize the confidential nature of the Buyer's Evalua tion Material or Seller's Evaluation Material, as applicable, and agree to be legal ly bound to the same burdens of confidentiality, non-use and non-disclosure to which each Party is bound by this Agreement. Each Party agrees to use its best efforts to secure compliance with this Agreement by those directors, officers, employees, advisors, and investors and further agree to be responsible for the breach of this Agreement by any of those persons. Without the prior written consent of the other Party, except as required by applicable la w, rule, or regulation of governmental authority, neither Party nor its directors, officers, employees, advisors, or investors will confirm or deny any statement made by any third-party regarding the Evaluation Material, disclose to any person the fact that the Evaluation Materi al has been made available to the Party or that any investigations, discussions, or negotiations are taki ng place concerning a possible transaction involving the Parties, or any of the terms, conditions, or other facts with respect to any possible transaction, including its status. The term "person" a s used in this letter shall be broadly interpreted to mean any individual or entity, includi ng, without limitation, any corporation, company, partnership, limited liability company, joint vent ure, trust, unincorporated association, governmental body, agency, or political subdivision. You agree to keep a record of the Buyer's Evaluation Material furnished to you and of the location of Buyer's Evaluation Material. The Buyer's Evaluation Material, including, wi thout limitation, any analyses, compilations, studies or other documents prepared by you, your agents, representatives, or employees, will be returned to Buyer immediately upon the request of Buyer. We agree to keep a record of the Seller's Evaluation Material furnished to us and of the location of Seller's Evaluation Material. The Seller's Evaluation Material, inc luding, without limitation, any analyses, compilations, studies or other documents prepared by us, our agents, representatives, or employees, will be returned by Buyer immediately upon the request of Seller. Nothing contained in this Agreement shall obligate either Party to make any proposal, enter into negotiations, or continue any evaluation, with respect to a business transac tion with the other Party. Without Seller's prior written consent, Buyer or Buyer's affiliates, subsidiaries or representatives shall not, for a period of _____________________________ (_______) years from the date of this Agreement, directly or indirectly, initiate contact with, solicit for employment, or employ any person who is now employed by Seller or any affiliate of Seller.The Parties agree that the other Party would be irreparably injured by a breach of the provisions of this Agreement and that each Party shall be entitled to equitable re lief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Agreement. These remedies shall not be deemed to be the exclusive remedies in the event of a breach, but shall be in addition to all other remedies at law or equity. It is underst ood and agreed that no failure or delay by either Party in exercising any right, power, or privilege provided in this Agreement shall operate as a waiver, nor shall any single or partial exercise prec lude any other or further exercise, or the exercise of any right, power or privilege provided in this letter. THIS AGREEMENT IS FOR THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE AFFILIATES AND REPRESENTATIVES, ENFORCEABLE BY THE PARTIES AND THEIR RESPECTIVE AFFILIATES AND REPRESENTATIVES (SEVERALLY OR JOINTLY) IN ACCORDANCE WITH ITS TERMS, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF _____________________________ . A PERSON OR ENTITY THAT AT ANY TIME AFTER THE DATE OF THIS AGREEMENT BECOMES AN AFFILIATE, SUBSIDIARY, OR REPRESENTATIVE OF EITHER PARTY SHALL BE DEEMED TO BE SUCH FOR PURPOSES OF THIS AGREEMENT, REGARDLESS OF WHETHER THAT PERSON OR ENTITY HELD THAT CAPACITY ON THE DATE OF THIS AGREEMENT. If you agree with the foregoing, please indicate your agreement to be legally bound, and your acceptance of the terms of this Agreement by signing in the space provided below and returning the enclosed duplicate original, which will then constitute a binding agree ment between Buyer and Seller in accordance with its terms. _______________________________Buyer Agreed to and Accepted this ____ day of ___________ , ____. _______________________________ Seller