FORM OF CONFIDENTIALITY AGREEMENT

 

This Confidentiality Agreement (the “Agreement”) is made as of ________, __, 20__ (the “Effective Date”) by _______________________, a __________ (“Receiving Party”) in favor of ____________________, a __________ (“WPG”).  Receiving Party and Disclosing Party are together referred to as the “Parties” and each, a “Party.”

 

The Receiving Party is interested in obtaining information regarding ________________ (the “Proposed Transaction”) and Disclosing Party desires to keep the information confidential. Therefore, the Parties agree as follows:

 

1. Confidential Information.

 

• “Confidential Information” includes all information, in written, graphic, pictorial, recorded, electronic or oral form, disclosed by Disclosing Party in connection with the Receiving Party evaluating a Proposed Transaction (the “Purpose”) either before or after the Effective Date concerning the Proposed Transaction, the Disclosing Party, the Receiving Party and/or such Party’s business and affairs. For purposes herein, the term “Confidential Information” shall include the fact that (a) this Agreement exists, or (b) there exists any potential discussion or negotiation between the Parties regarding the Proposed Transaction.

 

• “Confidential Information” does not include information that:
  1. is generally available to the public through no breach of this Agreement;
  2. is lawfully received from a third party with the right to disclose the information; or

• was independently developed from or without reference to the Confidential Information.

 

• A “Disclosing Party” includes WPG and its directors, officers, employees, advisors, and consultants (including attorneys, accountants, and financial advisors), agents, affiliates or other representatives who provide Confidential Information.

 

• The “Receiving Party” includes the Receiving Party and its directors, officers and employees who receives the Confidential Information from a Disclosing Party.

 

• The “Representatives” shall include affiliates, outside counsel, accounting firms, partners, investors, or other advisors of Receiving Party, any of whom need to know such Confidential Information for purposes of evaluating the Proposed Transaction.

 

2. Confidentiality. Receiving Party agrees:

 

• to keep all Confidential Information secret and not disclose the information, directly or indirectly, to outside parties (other than any Representatives);
• to take all reasonable measures to safeguard the information against unauthorized disclosure;
• to use the Confidential Information only for this Agreement’s Purpose;
• not to copy or reproduce any Confidential Information in any form, unless expressly permitted in writing by Disclosing Party;
• to limit disclosure of Confidential Information to those Receiving Party Representatives who are necessary for and involved in the Receiving Party’s evaluation and negotiation of the Proposed Transaction; and
• to advise any Representatives and directors, officers and employees of Receiving Party with access to Confidential Information of the obligations under this Agreement and the requirement to hold such Confidential Information strictly confidential; and
• to promptly give notice to Disclosing Party if it becomes aware of any actual or suspected unauthorized use or disclosure of any Confidential Information and agrees to assist Disclosing Party in remedying any such unauthorized use or disclosure of Confidential Information (at Receiving Party’s sole cost and expense).

 

Receiving Party shall be liable for any violations of the provisions of this Agreement by any one or more of its Representatives.

 

3. Required Disclosure. In the event that Receiving Party is lawfully required to disclose Confidential Information by law or governmental order, then Receiving Party will provide prompt notice to Disclosing Party before disclosing the information to allow Disclosing Party to seek a protective order or other restriction on the disclosure. Receiving Party will cooperate with Disclosing Party in seeking any such protective order or other remedy.

 

If disclosure of Confidential Information is ultimately required, such disclosure shall be limited to only that portion of Confidential Information which is legally required to be disclosed, and such disclosure shall be made only to such persons to whom such information is legally required to be disclosed.

 

4. Return of Confidential Information. All materials that include Confidential Information are the property of Disclosing Party.

 

In the event that either Party elects not to proceed with the Proposed Transaction or upon the written request of Disclosing Party at any time, Receiving Party will at Disclosing Party’s direction either a) certify the deletion or destruction of, or b) return all materials containing Confidential Information, including copies and electronic materials.

 

Confidential Information contained in an intangible or electronic format that reasonably cannot be removed, erased, or otherwise deleted from archival systems (also known as computer or system back-ups) does not need to be deleted but shall continue to be protected by the Receiving Party under this Agreement.

 

5. Term. Receiving Party’s obligations under this Agreement will continue until the later of:
   • the date that is one (1) year from the date of disclosure, or
   • the date that the Proposed Transaction is executed in a written agreement.

 

6. Representations. Receiving Party agrees that Disclosing Party makes no representations or warranties, express or implied, as to the content, completeness or accuracy of any of the Confidential Information, and further agrees that Disclosing Party shall assume no responsibility or have any liability of any nature whatsoever to Receiving Party resulting from the selection or use of the Confidential Information.

 

This Agreement does not create a contract or relationship between the Parties other than for the protection of Confidential Information unless and until the Parties enter into a written agreement regarding the Proposed Transaction.  The signatures of the Parties below constitute an express representation by the Parties that each representative has the authority to bind such Party to this Agreement.

 

7. Indemnification. Receiving Party shall indemnify, defend, and hold harmless Disclosing Party from any actual or threatened legal or administrative action, claim, liability, penalty, fine, assessment, lawsuit, litigation, or other loss, expense or damage, including, without limitation, any reasonable attorneys’ fees and costs, that Owner may incur arising out of or relating to the Receiving Party’s breach of any provision of this Agreement (including any breach by a Representative).

 

8. Miscellaneous.

 

• This Agreement shall be governed by and interpreted under Ohio law, without regard to conflicts of laws principles.

 

• Notices under this Agreement may be sent by (i) hand delivery, (ii) nationally recognized commercial overnight courier at the addresses set forth below, or (iii) to the email addresses listed below. A notice sent in accordance with this section shall be deemed received on the date delivery actually occurs or is refused by the receiving Party. Each Party’s notice address is:

 

If to [________]: _________________________ _________________________ Attn: ____________________ Email: ___________________

If to WPG: wpg 4900 East Dublin Granville Road Westerville, Ohio 43081 Attn: Office of General Counsel Email: gc@wpgus.com

 

• The Parties agree that the breach of the provisions of this Agreement by Receiving Party will cause Disclosing party irreparable damage for which recovery of money damages would be inadequate or impossible to ascertain. Disclosing Party will, therefore, be entitled to obtain timely injunctive relief to protect Disclosing Party’s rights under this Agreement in addition to any and all remedies available at law.

 

• This Agreement may be amended only in writing signed by all of the Parties.

 

• No provision of this Agreement will be considered waived unless consented to in writing by the Party making the wavier. The written waiver of a certain provision does not constitute a waiver of other provisions.

 

• Signed copies of this Agreement may be exchanged by hand or by e-mail in pdf format, and either method shall be binding on the Receiving Party.

 

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Receiving Party executes this Agreement as of the Effective Date.

 

[Receiving Party Legal Name]

 

By:                                                                  

Name:                                                             

Title: