CONFIDENTIALITY AGREEMENT [RECEIVING PARTY] [ADDRESS] [ADDRESS] ATTN: [NAME]

waxspadeManagement

Nov 18, 2013 (3 years and 4 months ago)

61 views

CONFIDENTIALITY AGREEMENT




[RECEIVING PARTY]

[ADDRESS]

[ADDRESS]

ATTN: [NAME]


[DATE]


Ladies and Gentlemen:

Blue

Asset Management
, LLC

(the “Company”)
and
[RECEIVING PARTY]

(“
[NAME
]
,” “us,” “our”
and “we”)
wish to
consider
an engagement
in relation to
a

[DESCRIBE TRANSCATION]

(
collectively
the “Transaction

). In that connection, the Company is furnishing to us certain information
in accordance
with the provisions of this Agreement
(
this “Agreement”
)

as further

described below.


1.

Confidential Information
.

Any
non
-
public

or confidential

information
or data
,

irrespective of form or
medium
,
concerning
the Company’s business, operations and assets
, including, without limitation,
any information, trade or business services, discoveries, ideas, concepts, know h
ow, techniques,
designs, strategies, specifications, drawings, blueprints, designs, flow
-
charts, data, computer
programs, marketing plans, customer names, employee data
, customer files, customer data that are
proprietary to
the Company

which is furnished t
o us

either before or after the date of this Agreement,

for the Transaction

or under this Agreement

by the Company

or its Representatives (as defined
below)
,

is herein collectively referred to as the “Confidential Information”.

The fact that discussions
are taking place between the parties regarding the Transaction, the substance of those discussions and
the terms of any agreement that may be entered into also constitute “Confidential Information”.


“Confidential Information”
does

not include information
which

(i) is or becomes generally available
to the public other than as a result of a disclos
ure by us in violation of this A
greement;

(ii) is or was within our possession prior to its being furnished to us by or on behalf of the Company
pursuant hereto,
p
rovided

that the source of such information was not known by us to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to
the Company or any other party with respect to such information; (iii)

becomes available to us on a
non
-
confidential basis from a source other than the Company, its representatives or agents,
provided

that such source is not known by us to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary
obligation of confidentiality to the Company or any other party with
respect to such information
; or

(iv)
was or is hereafter independently developed by us or on our behalf
without reference to the Confidential Information.


2.

Term.

This Agreement and the o
bligations herein shall terminate

earlier of (i)
two years

from the date
of this Agreement,
unless

the parties enter into any definitive
agreement relating to the Transaction
, in
which case
two years

from the date of receipt of
the
Confidential Information

and

(ii)
upon the return
and/or destruction of all Confidential Information.


3.

Use and Non
-
Disclosure
.
W
e agree that we shall use the Confidential Information solely
in
connection

with

the performance of or

considering whether to undertake the Transaction

contemplated hereby, and that the Confidential Information will be kept confidential and that we will
not disclose any of the Confidential Information;
provided
,
however
, that (i) we may make any
disclosure of such information to which the Company gives i
ts prior written consent
or
(ii) any of

2

such information may

be disclosed to our affiliates and our respective

directors, officers, employees,
agents
,

consultants,
advisors
,
service providers
or representatives

(collectively,
“Representatives
”) for
the pur
pose of evaluating
or performing under
the Transaction and who shall be informed of the
confidential nature of the
Confidential I
nformation.

You agree to be responsible for any breach of
this Agreement by your Representatives (including, without limitatio
n, any actions or inactions by
your Representatives that would constitute a breach as if such Representatives were original
signatories hereto).


4.

Permissible Disclosure
.
Paragraph
3

notwithstanding
, i
n the event that we are required by law or
requested by

any governmental agency or other regulatory authority (including any self
-
regulatory
organization
exchanges, clearing house or trading facility
having jurisdiction or claiming to have
jurisdiction over us and/or our Representatives) or pursuant to legal p
rocess to disclose any of the
Confidential Information, the fact that the Confidential Information has been made available to us,
that discussions or negotiations a
re taking place concerning the T
ransaction or any of the terms,
conditions or other facts wi
th respect thereto,
you will (a) notify the Company promptly of the
existence, terms and circumstances surrounding such request or requirement, (b) consult with the
Company on the advisability of taking legally available steps to resist or narrow such requ
est or
requirement, (c) if disclosure of any Confidential Material is required, disclose only that portion of
such Confidential Material which, upon advice of your legal counsel, you are legally required to
disclose and (d) exercise your best efforts to ob
tain a protective order or other reliable assurance that
confidential treatment will be accorded to such Confidential Material. In any event, you will not
oppose action by the Company to obtain such a protective order or other assurance
.

Notwithstanding
t
he foregoing, we and our Representatives may disclose to any and all persons, without limitation of
any kind, the U.S. federal tax treatment and tax structure of the Transaction and all materials of any
kind (including opinions or other tax analyses) that
are provided to us relating to such tax treatment
and tax structure.


5.

Return of Confidential Information
. Upon the Company’s written request, all copies of the
Confidential Information

(
except for

(i)

that portion of the Confidential Information that
is

required
to be retained pursuant to law and/or regulation and
/or

(ii) Confidential Information stored on
automatic computer back
-
up archiving systems
)
, will be promptly returned to the Company or
destroyed;
provided
,
however
, that any Confidential Informat
ion retained by us shall be maintained
by us subject to confidentiality purs
uant to the terms of this A
greement.


6.

Express Agreement
. You agree that u
nless and until a definitive transaction agreement

between the
Company and
[RECEIVING PARTY]

has been exec
uted, neither party hereto will be under any legal
obligation of any kin
d whatsoever by virtue of this A
greement except for the matters specifically
agreed to herein.

It is understood and agreed that neither this Agreement nor discussions between
the
p
art
ies

shall be construed to create: (i) any obligation to refrain from entering into agreements or
negotiations with any other party; or (i
i) any obligation to the other P
arty hereunder with regard to the
Transaction

or any proposed service, product, initiat
ive, application or other business undertaking or
venture. Such obligations would be incurred, if at all, pursuant to the terms of a separate formal
agreement.


7.

Entire Agreement
. This A
greement embodies the entire understanding and agreement between the
parties with respect to the Confidential Information and supersedes all prior understandings and
agreement (whether oral or written) relating thereto.
This Agreement may only be modified in a writing
executed by both parties.
Th
e terms and conditions of th
is A
greement shall be superseded by the terms
of any definitive transaction agreement that may be entered into by the parties hereto relating to the

confidential treatment of the Confidential I
nformation governed hereby.



3

8.

No Partnership or Joint Venture
.
This Agreement is not intended to, and shall not be deemed to, create
any partnership, joint venture, joint enterprise or business relationship between the parties hereto, or
to
authorize or empower either p
arty to act on behalf of or obligate or bind the
other
p
arty. Nothing in this
Agreement, expressed or implied, is intended to confer on any third party any rights or remedies under
or by reason of this Agreement.


9.

Governing Law, etc.

This A
greement shall be governed by and construed in accordance with t
he laws
of the State of New York, without regard to principles of conflicts of law.

Each party hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of
the courts of the State of New York sitti
ng in the Borough of Manhattan and of the United States
District Court for the Southern District of New York, and any appellate court from any thereof, in any
suit, action, proceeding
, claim or counterclaim brought by or on behalf of any party rel
ated to o
r arising
out of this A
greement (each a “Proceeding”), and

each party hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such Proceeding may be heard and determined
in such court. With respect to any such Proceeding, ea
ch party hereto hereby irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, (i)

any objection which it may
now or hereafter have to the laying of venue, (ii)

the

defense

of an inconvenient forum and (iii)

any
right to
trial by jury.


10.

Assignment
. This
A
greement shall inure to the benefit of and be binding upon each of the parties and
their respective successors and assigns,
provided
,
however
, that neither this Agreement nor any of the
rights, interests or obligations
hereunder shall be assigned by either party hereto without the prior
written consent of the other party, and no assignment of any right, interest or obligation shall release
any such assigning party therefrom unless the other party shall have consented to
such release in writing
specifically referring to the right, interest or obligation from which such assigning party is to be
released.


11.

Equitable
Relief
. You acknowledge that money damages and remedies at law will be inadequate to
protect the Company aga
inst any actual or threatened breach of this Agreement by you and/or your
Representatives and, without prejudice to any rights and remedies otherwise available to the Company,
you agree to the granting of specific performance, injunctive relief and other e
quitable remedies in the
Company’s favor without proof of actual damages, and you further agree to waive, and to cause your
Representatives to waive, any requirement for the securing or posting of any bond in connection with
any such remedy. In the event
of any breach of this Agreement by you and/or your Representatives,
you agree to reimburse the Company promptly upon demand for all out
-
of
-
pocket costs and expenses
incurred by it in the enforcement of its rights hereunder (including, without limitation, r
easonable fees
and disbursements of its legal counsel).


12.

Waiver
.
No failure or delay by the Company in exercising any right, power or privilege under this
Agreement will operate as a waiver thereof nor will any single or partial exercise thereof preclude a
ny
other or further exercise of any right, power or privilege.


I
n the event that any provision of this Agreement or the application thereof to any person or in any
circumstance shall be determined to be invalid, unlawful or unenforceable to any extent,
the remainder
shall be unaffected and shall continue to be valid and may be enforced to the fullest extent permitted by
law.


4


Please confirm your agreement with the foregoing by signing and returning one copy of this letter to the
undersigned.


Very trul
y yours,


[RECEIVING

PARTY]




By: ______________________________

Name:

Title:

Address

for notices
:



Accepted and agreed as of the date first written above:


BLUE

ASSET MANAGEMENT
,

LLC




By: ___________________________

Name:

Title: