Confidentiality Agreement

This CONFIDENTIALITY AGREEMENT (the “Agreement”) is made between Light & Raphael, LLC (L&R) on behalf of its to-be-disclosed client company (“Company”), whose identity will be revealed to you following your execution and delivery of this Agreement and Prospective Purchaser (“Prospective Purchaser”).


A. The parties intend to enter into discussions with each other regarding the possible acquisition of substantially all of the Company’s operating assets or capital stock by Prospective Purchaser (“Discussions”).

B. Prospective Purchaser agrees that all information concerning Company that is made available in connection with the Discussions, whether before or after the date hereof, (the “Confidential Information”) must be kept confidential, subject to the exceptions expressly set forth below.

C. Prospective Purchaser agrees and confirms that the disclosure of the Confidential Information could cause injury to Company. L&R is authorized to execute this Agreement as Company’s representative. Now, therefore, in consideration of the mutual covenants herein, contained, it is hereby agreed as follows:

Article I

Agreements Concerning Confidential Information

Section 1.1 Confidential Information. The Confidential Information includes all information disclosed to Prospective Purchaser pursuant to this Agreement, including, without limitation, information concerning Company‘s name, customers, suppliers, revenues, contracts, financial affairs, business operations, documents, proprietary information, governmental relations and filings and methods of doing business.  Notwithstanding the foregoing, Confidential Information shall not include: (i) any information about Company that was obtained by Prospective Purchaser from publicly available sources or was in its possession prior to the date the Parties began the Discussions or (ii) any information which is lawfully obtained by Prospective Purchaser from a third person, who is not known by Prospective Purchaser, after due inquiry, to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation to Company.

Section 1.2 Confidentiality. Prospective Purchaser will maintain as confidential and not disclose any of the Confidential Information to any person, corporation or other entity other than the Authorized Parties defined below or as required by law. Subject to the exceptions set forth in Section 1.1, the Confidential Information includes all information and data delivered by, or on behalf of, Company including, without limitation, any and all (i) writings, magnetic recordings and other tangible media and (ii) all information and data contained therein or in verbal communications, received or obtained from Company or its advisors or agents and any and all summaries, memoranda or other written or recorded (in any manner) studies and data created by either party, and/or its agents or employees relating to the Confidential Information.

Section 1.3 Authorized Parties. The individuals who will be granted access to the Confidential Information are those individuals employed by or otherwise associated with Prospective Purchaser who have a need to know such Confidential Information and who are directly involved in the Discussions or analysis of the potential acquisition, and attorneys, accountants and other consultants employed by Prospective Purchaser in connection with the Discussions (collectively, the “Authorized Parties”). Prospective Purchaser shall ensure that the Authorized Parties comply with the provisions of this Agreement as fully as if the Authorized Parties had executed this Agreement as the “Prospective Purchaser.”

Section 1.4 Confidential Relationship. Prospective Purchaser acknowledges that the Confidential Information is being revealed to it for its use in the Discussions and pursuant to the condition that it is under a duty not to disclose the Confidential Information unless required by law. Prospective Purchaser shall not use the Confidential Information for any purpose whatsoever other than in connection with the discussions.

Section 1.5 Return or Destruction of Information. All Confidential Information of Company shall remain the property of Company and in the event that the Discussions terminate, Prospective Purchaser shall return to Company all of the Confidential Information that was delivered in tangible form (including magnetic or other means of data storage), and all copies thereof and summaries or extracts there from, and either deliver to Company, or destroy, all of the balance of the Confidential Information that is in intangible form (including magnetic or other means of data storage).

Section 1.6 Duration of Covenants. The confidentiality covenants set forth above shall be in full force and effect during the Discussions and until the expiration of two (2) years after the termination of Discussions. The parties believe that the duration of the confidentiality covenants set forth herein are reasonable in all respects. If a court of competent jurisdiction should hold that such covenants are unenforceable in whole or in part because of the duration thereof, the Parties agree that the covenants shall be deemed to be in full force and effect throughout the maximum period of duration as such court shall find to be enforceable. In the event that such covenants are held to be unenforceable in any jurisdiction, such holding shall not be conclusive on the courts in any other jurisdiction.

Section 1.7 Remedies. Company shall be entitled to injunctive relief, a decree of specific performance and/or other equitable relief to prevent the wrongful release of information or other breach of this Agreement. The party substantially prevailing in any litigation shall be entitled to its costs of suit and reasonable attorney’s fees in addition to any other remedy available to it.

Section 1.8 Public Announcements. Neither party shall, without the prior written consent of the other party, make any statement, or any public announcement or any release to trade publications or to the press or make any statement to any competitor, customer or any other third party with respect to the Discussions, except as may be necessary, in the opinion of their respective legal counsel, to comply with the requirements of any law, governmental order, or regulation.

Section 1.9 Non-Solicitation. In consideration of the Confidential Information being furnished to you, you agree that, prior to the date that is twenty-four (24) months after the date hereof, neither you nor any other Authorized Parties will, directly or indirectly, solicit for employment or hire any employee of the Company; provided that nothing herein shall preclude you from hiring any individual employed by the Company who responds to a general advertisement or is referred to you by an employment agency, so long as such advertisement or the efforts of such agency are not directed specifically toward such individual or other employees of the Company.

Article II


Section 2.1 Assignment; Binding Effect; Enforceability. This Agreement may not be assigned without L&R’s prior written consent. This Agreement shall be binding upon inure to the benefit of the parties and their successors and assigns. By your execution of this Agreement, you agree that the Company is an intended third-party beneficiary of this Agreement and shall have the right to enforce the terms and provision of this Agreement against you as if this Agreement were initially made between you and the Company.


Section 2.3 Amendment. This Agreement may be amended only by the written agreement of the Parties.

Section 2.4 Counterparts. This Agreement may be executed in counterparts, each copy of which shall serve as an original for all purposes, but all copies shall constitute but one and the same agreement.

Section 2.5 Section Headings. All Section headings set forth in this Agreement are intended for convenience only and shall not control or affect the meaning, construction or references in this Agreement or any of the provisions thereof.

Section 2.6 Severability. This Agreement is severable and if for any reason any provisions hereof are determined to be invalid, inoperative or contrary to any existing or future law, the remainder of this Agreement shall be considered valid and operative and effect shall be given to the intent manifested by the portion held invalid or inoperative, to the fullest permissible extent.

Section 2.7 Disclosure of Brokerage Relationship. Prospective Purchaser hereby acknowledges that Light & Raphael and its associates represent the Company in connection with the Discussions. Prospective Purchaser hereby agrees to work only through L&R and its authorized representatives with respect to the Discussions, and that in consideration of L&R’s services, Prospective Purchaser hereby agrees not to circumvent L&R’s commission due and payable by the Company.

Section 2.8 Memorandum of Representation. Further, Prospective Purchaser acknowledges that it has received and understands the MEMORANDUM OF REPRESENTATIONS from Light & Raphael, LLC.

Memorandum of Representations

The Confidential Memorandum (“Memorandum”) was prepared to market the Company and contains certain information with regards to the financials and operations of the Company. It is furnished to potential buyers on a confidential basis solely for the purpose of evaluating the Company to possibly purchase it. The interested party intends this Memorandum only for this use. It may not be reproduced in whole or in part or used for any other purpose without the expressed written permission of Light & Raphael, LLC (“L&R”). L&R has prepared this Memorandum from information supplied by the Company and other sources deemed reliable. Any estimates and projections contained herein have been prepared by management of the Company and involve significant elements of subjective judgment and analysis, which may or may not be correct.

Neither the Company nor L&R makes any representation or warranty, expressed or implied, as to the accuracy or completeness of the information contained in this memorandum, and nothing contained herein is, or shall be relied upon as a promise or representation, whether as to the past or the future. This Memorandum does not purport to contain all of the information that may be required to evaluate such a transaction. Any interested party should conduct its own independent analyses of the Company and the data contained or referred to in the Memorandum.

L&R has not independently verified any information and assumes no responsibility for its accuracy or completeness. Neither the Company nor L&R expects to update or otherwise revise any materials supplied. Further, Prospective Purchaser should consult its own counsel, accountant and other professional advisors as to legal, tax, accounting and related matters concerning this purchase.

Prospective Buyer Information for Confidentiality Agreement

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