THIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into by the undersigned recipient (“Recipient”) as of the date set forth next to the Recipient’s signature below.
RECITALS
A. Borgman Capital LLC, a Wisconsin limited liability company (“Borgman”) is a private equity firm that identifies, assesses and pursues business and real estate acquisition opportunities and other investment opportunities (each such opportunity, a “Potential Target”).
B. In connection with a pursuit of a Potential Target, Borgman may cause the creation of one or more new legal entities for the purposes of consolidating capital and effectuating the acquisition of, or other investment in, a Potential Target (each such legal entity (or group of related entities with respect to a particular Potential Target), a “Platform”).
C. Recipient desires to receive information about one or more Potential Targets and/or Platforms to assess whether Recipient desires to make an investment in one or more Platforms (the “Disclosure Purpose”).
D. As a condition to receiving any Confidential Information (as defined below), Recipient agrees to be bound by the terms of this Agreement.
AGREEMENTS
In consideration of the Recitals and the promises, covenants, agreements, representations and warranties contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which the parties acknowledge, the parties agree as follows:
1. Confidential Information Defined. “Confidential Information” shall mean all information that is non-public, confidential or proprietary information regarding a Potential Target or a Platform that is provided, furnished or made available (collectively “Disclosed” or “Disclosure”) to Recipient by Borgman or any Platform, or any of their respective employees, officers, directors, agents, representatives, attorneys, investment bankers or consultants (any such person or entity, a “Discloser”). Without limiting the foregoing, Confidential Information includes all financial information, forecasts, margin information, customer information, acquisition target information, technical information, intellectual property, operations information, business plans and strategies, negotiation strategies, techniques, methods, trade secrets, schematics, processes, flow charts, formulas, product specifications, know-how, research, data and requirements and all other proprietary data regarding a Potential Target or a Platform that is Disclosed by a Discloser to Recipient. Any information described in the preceding sentence shall constitute Confidential Information, regardless of the manner or medium or time period in which it is Disclosed, including (a) such information that was Disclosed before or after the date of this Agreement, (b) such information set forth in any offering memorandum, private placement memoranda (and the exhibits attached thereto) or other disclosure or legal document, or conveyed to Recipient as part of any investor presentation or similar event and (c) such information that is made available to Recipient through any data room, portal or online website. The fact that discussions or negotiations are taking place between Borgman and/or a Platform, on one hand, and a Potential Target, on the other hand, shall also constitute Confidential Information hereunder. Confidential Information shall be deemed to include all notes, analyses, compilations, studies, interpretations and other documents prepared by Recipient which contain or are based upon, in whole or in part, the information Disclosed to Recipient pursuant hereto.
2. Confidentiality Obligation. Recipient hereby agrees that Recipient will not, directly or indirectly, use any of the Confidential Information except for the Disclosure Purpose, and Recipient further agrees not to disclose to any third party, directly or indirectly, any Confidential Information without the prior written consent of Borgman. Without limiting the generality of the foregoing, Recipient agrees to treat all Confidential Information as confidential and, unless Borgman or a Platform provides its prior written consent, Recipient will not disclose the Confidential Information to any third party. Recipient shall utilize the Confidential Information solely for the Disclosure Purpose. Recipient agrees to take reasonable and appropriate precautions against unauthorized use or disclosure of the Confidential Information and to safeguard the confidential and proprietary nature of the Confidential Information.
3. Exceptions. Recipient’s obligation of confidentiality contained in this Agreement shall not apply to any information that: (a) Recipient receives in good faith from a third party who was not under any obligation of confidentiality to Borgman or a Platform at the time the third party disclosed the information to Recipient; (b) is or hereafter becomes available to Recipient or the general public through no violation of this Agreement; (c) was known to Recipient prior to the time of Disclosure by the Discloser, as evidenced by Recipient’s contemporaneous written records; or (d) is independently developed by Recipient without use of or reference to the Confidential Information, as evidenced by Recipient’s contemporaneous written records.
4. Court Proceedings. Notwithstanding any other provision of this Agreement, Recipient may disclose Confidential Information to the extent required to be disclosed by order of a court or government agency; provided, that Recipient shall provide reasonable prior written notice to Borgman of such required disclosure, and shall reasonably cooperate with Borgman or any Platform in its effort to seek an order or other remedy protecting the confidentiality of such Confidential Information.
5. Determination Not to Proceed. With respect to any specific Potential Target (and the related Platform), if the Recipient desires not to proceed with an investment in such Platform, and in any event within three days after being so requested by Borgman or the applicable Platform, Recipient shall return to Borgman or the applicable Platform all Confidential Information Disclosed by any Discloser to Recipient that is controlled by, or in the possession of, such Recipient, including all copies, extracts and reproductions. Recipient agrees to destroy all written materials (including computer-based information), memoranda, notes and other writings prepared by Recipient and based upon the Confidential Information or containing the Confidential Information. Upon the request of Borgman or the applicable Platform, Recipient shall certify to Borgman or the applicable Platform in writing to such destruction. Any Confidential Information that is not so destroyed or returned, including oral Confidential Information, shall remain subject to the confidentiality obligations set forth in this Agreement.
6. Term; Termination.
(a) The obligations of confidentiality and non-use imposed under this Agreement with respect to Confidential Information that is Disclosed to the Recipient shall survive for two years following the date of Disclosure, except with respect to Confidential Information which constitutes a trade secret, for which the obligations of confidentiality and non-use shall survive until the later of (a) the end of the applicable two year period described, above, and (b) the date when such Confidential Information is no longer a trade secret under applicable law. For purposes of clarification, the obligations hereunder and the term referred to in this Section 6(a) with respect to a specific piece or set of Confidential Information shall not be impacted by the expiration of the term relating to any other piece or set of Confidential Information.
(b) At any time, Recipient may terminate this Agreement in its entirely by providing sixty (60) days written notice thereof to Borgman. Any such termination shall be effective only with respect to Confidential Information that may be Disclosed after the date of such termination, and shall not have any impact on Recipient’s obligations under this Agreement with respect to Confidential Information that was Disclosed prior to the date of such termination (all of which obligations shall remain in effect in accordance with their terms).
(c) At any time, Borgman may terminate this Agreement in its entirely by providing written notice thereof to Recipient.
7. Ownership; No Warranties. All Confidential Information shall remain the exclusive property of Borgman or the applicable Platform. This Agreement neither creates nor implies any rights, conditions or obligations other than as expressly set forth herein. In particular, no right or license, either express or implied, under any patent or patent application, copyright, trademark or other intellectual property right is granted hereunder. Recipient understands and acknowledges that the Disclosure of the Confidential Information to Recipient does not in and of itself constitute a representation or warranty of any kind as to the accuracy or completeness of such information.
8. Indemnification; Consideration. Recipient agrees to indemnify, defend, compensate, reimburse and hold Borgman and each Platform, and their respective employees, officers, directors, agents, representatives, attorneys, investment bankers or consultants, harmless from and against any and all loss, damage, cost or expense (including reasonable attorneys’ fees) resulting from or arising out of any breach of this Agreement by Recipient, including without limitation any costs and expenses and attorneys’ fees incurred by the Borgman or a Platform in enforcing this Agreement or asserting any remedy hereunder. Recipient acknowledges that the nondisclosure restrictions provided for herein are reasonable, that Borgman has relied upon them and that the Disclosure of the Confidential Information to Recipient is adequate consideration to fully and adequately compensate Recipient for agreeing to the nondisclosure restrictions.
9. Trade Secrets. Without limitation of and notwithstanding any other provision of this Agreement, any trade secret that is included in the Confidential Information shall be entitled to all of the protections and benefits under the Uniform Trade Secret Act and any other law applicable to trade secrets. If any information that Borgman or a Platform claims to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for purposes of this Section 9, such information shall still be considered Confidential Information for purposes of this Agreement. In the case of trade secrets, Recipient waives any requirement that the other party submit proof of the economic value of any trade secret or post a bond or other security.
10. Third-Party Requests; Disclosure. If any third party requests the Confidential Information, Recipient will not produce the Confidential Information to a third party without the prior written consent of Borgman or the applicable Platform. In the event of any disclosure or use of Confidential Information by Recipient in violation of this Agreement, Recipient shall promptly notify Borgman of the details of such violation, including, without limitation, a description of the Confidential Information that was disclosed or used in violation of this Agreement, the persons or entities (if any) to whom such Confidential Information was disclosed, the date(s) on which such disclosure or unauthorized use occurred, the means by which such Confidential Information was transmitted and the unauthorized use which occurred.
11. Governing Law. This Agreement shall be governed by and construed according to the internal laws of the State of Wisconsin.
12. Specific Performance. Borgman and each Platform shall have the right, in addition to such other remedies which may be available to it, to specific performance or injunctive relief enjoining such acts or attempts to breach this Agreement; it being acknowledged that legal remedies may be inadequate. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or equity.
13. Entire Agreement; Waiver.
(a) This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by Borgman and Recipient. This Agreement supersedes all previous agreements between the parties related to the subject matter of this Agreement. No failure or delay by any 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 future exercise thereof or the exercise of any other right, power or privilege hereunder.
(b) Notwithstanding the foregoing, if the Recipient consummates an investment in a Platform, and in connection with such investment the Recipient becomes subject to a confidentiality or similar non-disclosure covenant for the benefit of Borgman or the applicable Platform (including in any subscription agreement or in the governing documents for such Platform), then this Agreement shall cease to be applicable with respect to the Confidential Information related to that specific Platform, but this Agreement shall continue to be in full force and effect with respect to other past or future Potential Targets and Platforms.
(c) Neither Borgman nor any Platform has, by virtue of this Agreement, any obligation to Disclose any Confidential Information to Recipient. This Agreement does not obligate or commit Borgman, any Platform or Recipient to proceed with any agreement or a business transaction.
14. Application/Severability. This Agreement is binding upon the parties and their respective successors and assigns, if any. If any portion of this Agreement is found invalid or unenforceable for any reason, it is agreed that the invalidity or unenforceability shall not affect or validate any other portions of this Agreement. Any court of competent jurisdiction may so modify the objectionable provision as to make it valid, reasonable and enforceable.
15. Assignment; Binding Effect; Third-Party Beneficiaries. Recipient may not assign its rights and obligations under this Agreement. This Agreement shall be binding on the Recipient and shall inure to the benefit of Borgman and each Platform and their respective successors and assigns. Borgman is an express third-party beneficiary of this Agreement and is entitled to enforce the obligations of Recipient hereunder. Further, if the Recipient receives any Confidential Information related to a particular Platform for a Potential Target that is being pursued by, or is acquired by, such Platform, then such Platform is also an express third-party beneficiary of this Agreement, and is entitled to enforce the obligations of Recipient hereunder.
16. Counterparts. This Agreement may be executed in counterparts by email (PDF or TIFF attachment) or other electronic means, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Confidentiality and Nondisclosure Agreement as of the date first written above.
Electronic Signature. The Recipient agrees that its electronic consent to this Agreement (e.g. checking “I agree”) will have the same legal effect as a physical signature.
