MUTUAL CONFIDENTIALITY & NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality & Non-Disclosure Agreement ( “Agreement”) is made as of the “effective date” specified below by and between Lee Company, Inc., a Tennessee Corporation (“LEE”) and (“Discussion Party”) specified below (each a “party,” and together “parties”).
- LEE and Discussion Party are considering entering into a business relationship and/or transaction with each other (“Proposed Relationship”).
- In connection with evaluating the Proposed Relationship, each of LEE and Discussion Party has and will be furnishing the other with certain business information, trade secrets, technical data, marketing data, and other proprietary and nonpublic information.As a condition to the parties furnishing such information to the other, each party is requiring the other to agree to treat the Confidential Information (defined below) confidentially and in all respects in accordance with this Agreement.
NOW THEREFORE, in consideration of the foregoing Recitals and of the mutual promises and covenants set forth below, the parties agree as follows:
- Confidential Information.The party disclosing its Confidential Information to the other shall be referred to as the “Disclosing Party” and the party receiving the Confidential Information of the other party shall, together with such recipient party’s subsidiaries and affiliates, be referred to as the “Receiving Party.”The term “Confidential Information” includes all documents, materials and other information, whether in oral, written or electronic form, concerning the Disclosing Party that are furnished by or on behalf of the Disclosing Party and/or is identified by the Disclosing Party either orally or in writing as confidential to the Receiving Party at the time of disclosure.Confidential Information includes, but is not limited to, all notes, analyses, compilations, summaries, materials, products, product information, financial information, pricing information, information about technology, and studies of whatever type, or any other documents or materials prepared by the Receiving Party and its agents and employees which contain or reflect all or any portion of the originally disclosed materials.Notwithstanding the foregoing, Confidential Information does not include information that: (i) was or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its agents or representatives to one or more unauthorized parties; or (ii) becomes available to the Receiving Party on a nonconfidential basis from an independent source without breach of any confidentiality obligations.
- Covenant of Confidentiality.The Receiving Party covenants and agrees to keep confidential all Confidential Information of the Disclosing Party confidential, with the same level of care accorded by the Receiving Party to its own proprietary information, and the Receiving Party further covenants and agrees not to disclose or otherwise convey any portion of such Confidential Information either within or outside the Receiving Party’s organization, except to those of the Receiving Party’s employees, accountants, attorneys, agents, representatives and advisers who need to know such information for the sole purpose of evaluating the Proposed Relationship (“Representatives”).In the event Receiving Party shares any Confidential Information with any Representatives, such Representatives shall be informed by the Receiving Party of the confidential nature of such information and the Receiving Party shall direct and require any and all Representatives to treat such information confidentially with a level of care at least as strong as that used by Receiving Party and to return such Confidential Information to the Receiving Party upon request in accordance with this Agreement.The Receiving Party further covenants and agrees to use the Confidential Information solely with respect to evaluating the Proposed Relationship and not to use the Confidential Information directly or indirectly for any other purpose; provided that if any definitive agreement governing the Proposed Relationship (a “Definitive Agreement”) is executed and permits broader use of any of the Confidential Information, the terms of such Definitive Agreement shall supersede this Agreement.The obligations under this Section 2 shall continue for three years from the date of disclosure of the Confidential Information.
- Return of Materials.The Receiving Party will promptly (but in any event within ten (10) business days) after the written request of the Disclosing Party return to the Disclosing Party (or with the Disclosing Party’s permission, destroy) the Confidential Information (without retaining any copies thereof), together with any notes, discs, tapes and other writings and materials prepared by or on behalf of the Receiving Party based on the Confidential Information.
- Confidentiality of the Proposed Relationship.The parties covenant that any terms or conditions, or the existence or status, of any Proposed Relationship is Confidential Information, and agree not to disclose to any person any such information except when disclosure is required by law upon advice of legal counsel and except as may otherwise be permitted or required by a Definitive Agreement.
- Permitted Disclosures.Notwithstanding the foregoing provisions, if any court, governmental agency or regulatory body requires that the Receiving Party disclose any of the Confidential Information of the Disclosing Party, the Receiving Party may disclose to such governmental authority that portion of the Confidential Information which the Receiving Party’s legal counsel advises it in writing must be disclosed.The Receiving Party shall, however, furnish the Disclosing Party with prompt written notice of such requests or demands as far in advance of such disclosure as reasonably practicable in order that the Disclosing Party may seek an appropriate protective order, and the Receiving Party shall cooperate with the Disclosing Party in seeking such an order.
- No Implied License. Neither this Agreement nor the disclosure of the Confidential Information shall be construed as a legally binding obligation of the parties to consummate any Proposed Relationship.No license or right is granted or implied in favor of either party with respect to any intellectual property rights of the other party.
- Remedies.The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Disclosing Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach without the necessity of posting bond.Such remedies shall not be deemed to be the exclusive remedy for breach of this Agreement, but shall be in addition to all other remedies that may be available at law or equity.Each party agrees to be fully responsible to the other party for, and indemnify such other party against, any damage or harm (including without limitation the legal fees and other costs incurred in enforcing such other party’s rights hereunder) caused to such other party by any breach of this Agreement by itself, its employees, advisers, representatives or agents.
- Waivers.No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
- Severability.In the event any provision of this Agreement is held to be unenforceable or contrary to law then the Agreement shall be interpreted, to the extent possible, without such provision.
- Entire Agreement; Amendments.This Agreement contains the entire understanding between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto.No modification or waiver of this Agreement or any provision hereof, nor consent to any departure therefrom shall be effective unless the same shall be in a writing executed by duly authorized officers of the party whose rights are being waived, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is given.
- Governing Law.This Agreement shall be subject to and governed by the internal laws of the State of Tennessee, without giving effect to conflicts of law principles.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first set forth above.