CONFIDENTIALITY AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which is expressly acknowledged, ______, a ______resident (“Recipient”), whose address is ______, hereby agrees as follows to and for the benefit of Molly Maid, Inc., a Michigan Corporation (“MOLLY MAID”) and ______, a ______(“Company”; MOLLY MAID and Company are collectively referred to as “Discloser”), whose addresses are ______.
In connection with the negotiation of a possible purchase of the assets or equity in the Company by Recipient (the “Potential Transaction”), Recipient has requested from the Company certain information concerning the business, operations, finances, properties and/or affairs of the Company. As a condition to Discloser furnishing any such information to Recipient, Recipient hereby agrees that any information which Discloser or any of their representatives or agents furnish to Recipient or Recipient’s representatives (as defined below) or which Recipient or Recipient’s representatives discover or otherwise develop therefrom (collectively, the “Evaluation Material”) will be treated and kept strictly confidential by Recipient and any of Recipient’s directors, officers, employees, attorneys, accountants, lenders or other agents and advisors (collectively “Recipient’s representatives”). Recipient shall notify Discloser in writing of any representative(s) he intends to disclose the Evaluation Material to, and shall transmit Evaluation Material only to Recipient’s representatives who are approved in writing by the Discloser; each of such Recipient’s representatives shall, prior to the delivery of the Evaluation Material be advised of this Agreement and agree to be bound by the provisions hereof. Recipient hereby further agrees that the Evaluation Material will be treated by Recipient and Recipient’s representatives at all times as belonging to Discloser.
The Evaluation Material shall not, except as hereinafter provided, without the prior written consent of Discloser, be disclosed by Recipient or Recipient’s representatives in any manner whatsoever, in whole or in part, and shall only be used by Recipient and/or Recipient’s representatives for the sole and exclusive purpose of evaluating the Potential Transaction.
Without the prior written consent of Discloser, Recipient will not, and will direct Recipient’s representatives not to, disclose to any person who is not a Recipient representative or a direct participant in the Potential Transaction either the fact that negotiations are taking place concerning a possible transaction between the parties or any of the terms, conditions or other facts with respect to a possible transaction, including the status thereof or the identity of the parties thereto. The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, any corporation, company, partnership, limited liability company, individual or other entity.
In the event that Recipient or Recipient’s representatives are requested or required in any legal proceeding (by interrogatories, deposition requests for information or documents subpoena or similar process) to disclose any of the Evaluation Material, it is agreed that Recipient will furnish Discloser with prompt notice of such request(s) so that Discloser may seek an appropriate protective order and/or waive Recipient’s compliance with the provisions of this Agreement.
Discloser may terminate or choose not to pursue discussions and/or negotiations with Recipient and deny Recipient access to Evaluation Material at any time without liability to Recipient and without affecting Recipient’s obligations under this Agreement.
In the event that the Potential Transaction is not consummated, Recipient will promptly, upon the request of Discloser, deliver to Discloser all Evaluation Material furnished by Discloser to Recipient, along with all copies thereof, without retaining any copies thereof. No representations or warranties are made by Discloser (and none shall be implied) with respect to the Evaluation Material or its accuracy.
The term “Evaluation Material” does not include information which: (i)is or becomes generally available to the public other than as a result of a disclosure by Recipient or Recipient’s representatives; (ii)was available to Recipient on a non-confidential basis prior to its disclosure to Recipient by Discloser or its representatives pursuant to this Agreement; or (iii)is or becomes available to Recipient on a non-confidential basis from a source other than Discloser or its representatives, provided, that such source is not bound by this or another confidentiality agreement for the benefit of the Company.
This Agreement shall be governed by the laws of the State of Michigan. It is further understood and agreed that no failure or delay by a party 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 thereof or the exercise of any right, power or privilege hereunder. This Agreement shall not be assigned without the prior written consent of Discloser.
Recipient acknowledges and agrees that money damages will not be a sufficient remedy for any breach of this Agreement by Recipient and that Discloser shall be entitled to specific performance as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for Recipient’s breach of this Agreement, but shall be in addition to all other remedies available at law or equity to Discloser. Recipient shall indemnify, defend and hold harmless Discloser from and against any and all liabilities, claims, actions, losses, costs, expenses and attorneys’ fees (including costs, expenses and attorneys’ fees incurred in the enforcement of this Agreement) which Discloser may incur as a result of the breach by Recipient or Recipient’s representatives of any provision of this Agreement.
In the event any provisions of this Agreement shall be declared to be unreasonable, invalid, void or unenforceable, or shall be modified by a judicial decree, order or judgment, the remaining or modified provisions of this Agreement shall remain in full force and effect, and the offending portions of this Agreement shall be modified to provide Discloser with the maximum protection permitted by law or equity.
Discloser may each rely on the facsimile signature of the Recipient to this Agreement.
Executed as of ______, 200_.
By: Date:
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By: Date:
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WITNESS:
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02/040207 2 Initial Here: ___, ___