Non-Circumvention &
Non-Disclosure Agreement
This is not an offering to sell securities. The materials accompanying this letter describe an investment opportunity that may or may not be made available to accredited investors by the Principal(s) (“Principal”). An offering to sell interests in the proposed transaction, if made at all, will be made pursuant to proper offering documents, which shall describe the terms of the offering and include the requisite subscription documentation. This confidential memorandum and its accompanying documentation contain forward-looking statements. You can identify such statements by the use of forward-looking words such as “may,” “will,” “anticipate,” “expect,” “intend,” “estimate,” “pro-forma,” “continue” or other such words. These types of statements discuss future expectations or contain projections or estimates. When considering such forward-looking statements, you should keep in mind that these forward-looking statements are based on various assumptions. Accordingly, there can be no assurance that such forward-looking statements will accurately predict future events or actual performance. There are many factors that could cause actual results to differ materially from those described in any forward-looking statement. We do not undertake any obligation to update or revise these forward-looking statements, whether as a result of new information, future events or otherwise. We make no representation, warranty, or assurance of any kind that the projections will be realized.
This confidential memorandum is intended solely for the use of the direct recipient of this confidential memorandum and may not be reproduced or used for any other purpose. Any person who accepts delivery of this confidential memorandum agrees to hold it in confidence. Reproduction or distribution of this confidential memorandum, in whole or in part, or the disclosure of any of its contents or the contents of any of the exhibits attached hereto, or any of the documents referenced herein, is prohibited.
The contents of this confidential memorandum are not to be considered or construed as legal, investment, business or tax advice. Each recipient should consult his, her or its own counsel, accountant, or other advisors.
The information contained in this confidential memorandum is intended to be current as of the date of this confidential memorandum, but no representation or warranty is made as to the accuracy or completeness of such information.
Mutual Non-Circumvention and Non-Disclosure Agreement
This Non-Circumvention and Non-Disclosure Agreement (the “Agreement”) is entered into this ________ day of__________________________, by and between Aldwych Equity Research, LLC (the "broker on behalf of the Principals") and ___________________________________, who for the purposes of this Agreement, along with their respective members, directors, employees or agents, may be referred to herein collectively as the “Parties” and individually as a “Party.”
WHEREAS, the Parties are evaluating a potential business relationship (the “Contemplated Relationship”) pursuant to which Parties may disclose to the other certain Confidential Information (as defined below) relating to company, or its business affairs, negotiations, developments and operations which is not generally known to the public; and
WHEREAS, pursuant to the terms and conditions herein, the Parties agree to be bound by the following confidentiality and non-circumvention obligations in connection with their business relationship with the other.
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by this reference, and the mutual covenants and promises contained in this Agreement, the Parties agree as follows:
1. Confidential Information. “Confidential Information” shall mean any information which is owned or controlled by either Party and its parent, subsidiaries, affiliates and/or divisions, including without limitation trade secrets, copyrights, ideas, techniques, contracts, projects, opportunities, know-how, inventions (whether patentable or not), business plans, strategies, past or future financing, marketing, forecasts, pricing, customers, partners and relationships, business ventures, finances any other information relating to or in connection with either Party and their operations generally, and all information derived by either party in connection with its evaluation of the Contemplated Relationship: all of which will remain the property of the Party providing the information.
2. Use. Both Parties shall keep strictly confidential the Confidential Information, and the negotiations and discussions regarding the Contemplated Relationship. Each Party acknowledges that the Confidential Information provided to the other Party is in all respects confidential and proprietary in nature, and agrees that any Confidential Information provided will be used solely in connection with its evaluation of the Contemplated Relationship.
3. Disclosure. Each Party further acknowledges and agrees that the Confidential Information shall not be disclosed, transferred or assigned to any other third party without the prior written consent of the other Party, which shall be given in its sole and absolute discretion. Each Party agrees to notify the other in writing of any misuse or misappropriation of the Confidential Information which may come to its attention as soon as reasonably possible after the discovery of such misappropriation.
4. Non-Circumvention. Each Party explicitly undertakes that all written or oral communications on the Contemplated Relationship and concerning the other Party or the Confidential Information shall be made exclusively with or through the other Party. No communication shall be made, proactively or reactively, with any other party, shareholder, financier, partner or business associate, or Governmental or Military Branch who may be potential customers of the other Party in relation to the Contemplated Relationship or the Confidential Information without Company’s prior written consent and neither Party shall attempt to establish a business relationship with the customers, providers, suppliers, purchasers or business relations of the other Party learned of by means of receipt of the Confidential Information without the prior written agreement of the other Party.
5. Exceptions. The obligations set forth above do not apply to information which: (I) has entered the public domain through no action or failure to act of the receiving Party; (ii) subsequent to disclosure hereunder is obtained by the receiving Party on a non-confidential basis from a third party who has the right to disclose such information to that Party; or (iii) is ordered to be or otherwise required to be disclosed by the receiving Party by a court of law or other governmental body. In the event that the receiving Party is requested to, or required by, applicable law, regulation or legal process to disclose any of the Confidential Information, Recipient shall notify the disclosing Party promptly so that it may seek a protective order or other appropriate remedy, or, in the disclosing Party’s sole discretion, waive compliance with the applicable terms of this Agreement.
6. Documents. All documents of any kind furnished in connection with the Contemplated Relationship shall remain the property of the disclosing Party, and the receiving Party shall return all documents and copies to the disclosing Party upon written request or certify that such documents and copies have been destroyed. The receiving Party shall keep all such documents and copies secure and control access to them while they are in his, her, or its possession or control and shall prevent such documents and copies from falling into the public domain, which preventive measures shall include using the same degree of care, but in no event less than a reasonable standard of care, as it uses to protect its own Confidential Information. Nothing in this Agreement is intended or shall grant any rights to the receiving Party under any domain name, patent, trademark copyright, or any other proprietary interest of the disclosing Party, nor shall this Agreement grant the receiving Party any license, rights or entitlement in or to the Confidential Information.
7. Injunctive Relief. The receiving Party agrees that remedies at law may be inadequate to protect against any actual or threatened breach of this Agreement, and hereby consents to the disclosing Party pursuing a grant of injunctive and other extraordinary relief, whether temporary, preliminary or final, without proof of actual damages. The receiving Party understands that this provision does not waive other actions or remedies.
8. Survival. In the event of termination or expiration of this Agreement, the Parties shall continue to hold the Confidential Information in strict confidence as set forth herein, for five (5) years from the date of termination or expiration, except with regard to trade secrets of the other Party, which shall be held in confidence for as long as such information remains a trade secret.
9. Indemnification. The receiving Party agrees to defend, indemnify, and hold harmless the disclosing Party and its directors, officers, agents, employees, subsidiaries, and affiliates from and against any claim, action, proceeding, liability, loss, damage, cost, or expense (including, without limitation, attorneys’ fees), arising out of any act or failure to act by the receiving Party resulting in a claim for injury or damages to any person or persons relating to the unauthorized access to, or the disclosure, loss, destruction or use of the Confidential Information, or other violation of this Agreement.
10. Disclaimer. Except as may otherwise be set forth in a signed, written agreement between the Parties, the disclosing Party makes no representation or warranty, express or implied, as to the accuracy, completeness, condition, suitability, or performance of the Confidential Information, including, without limitation, the patentability or freedom from patent or copyright infringement and the disclosing Party shall have no liability whatsoever to the receiving Party resulting from its use or evaluation of the Confidential Information.
11. No Legal Obligation. This Agreement is not intended as a legally binding contract or commitment to enter into the Contemplated Relationship. Neither Party shall have a legal obligation with respect to the Contemplated Relationship unless and until a definitive agreement is executed by them.
12. Attorneys’ Fees. In the event that any proceeding or action is brought by either Party to enforce or interpret the terms of this Agreement, the prevailing Party in such proceeding or action shall be entitled to recover its costs of suit, including reasonable attorneys’ fees.
13. Miscellaneous. The Parties further agree that: (a) this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns; (b) this Agreement, including the foregoing recitals incorporated herein, sets forth the entire understanding of the Parties regarding its subject matter and supersedes any other written or verbal agreement or understanding between the Parties; (c) this Agreement may be executed in counterparts, each of which may be signed and transmitted by facsimile or electronic mail with the same validity as if it were an ink-signed document; and (d) if for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement shall continue in full force and effect.
14. Arbitration. The Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by their mutual agreement shall be settled by arbitration in accordance with the then existing American Arbitration Rules promulgated by the American Arbitration Association. The arbitration shall be held in Houston Texas and shall apply the substantive law of the State of Texas. The Arbitrators shall have authority to award the reasonable attorneys fees and costs to the prevailing party in the arbitration. Should either party seek any injunctive relief with regard to this Agreement the parties agree to an exclusive grant of jurisdiction to the District Court of Harris County, Texas. The decision of the arbitrator shall be final and binding on the Parties, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction over the parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date written above
By: __________________________
By: __________________________
By: __________________________
By: __________________________