NDA

NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (this “Agreement”) is made as of , by and between (“Receiving Party), and Minerva Equity, LLC, a Wyoming limited liability company (“Disclosing Party”), with reference to the following:

WHEREAS, Receiving Party is evaluating the possibility of entering into a corporate transaction with, Disclosing Party, in respect of the acquisition of a certain target company (a “Transaction”);

WHEREAS, Disclosing Party may furnish Receiving Party with, and Receiving Party may otherwise obtain, Proprietary Information (as defined below) in connection with its evaluation of a Transaction;

WHEREAS, Disclosing Party desires to maintain the confidentiality and proprietary nature of the Proprietary Information, and the confidentiality of all negotiations and discussions relating to a Transaction; and

WHEREAS, to induce Disclosing Party to furnish Proprietary Information, Receiving Party is willing to execute this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agrees as follows:

As used herein,

“Proprietary Information” means (i) any and all information of any type and in any medium (written, oral, electronic or otherwise) furnished or made available (whether before or after the date hereof) by Disclosing Party or Disclosing Party's Representatives to Receiving Party or Receiving Party's Representatives or that otherwise is proprietary to or relates to Disclosing Party, any potential targets for acquisition of Disclosing Party, or any of Disclosing Party’s business relations, and (ii) any and all analyses, compilations, forecasts, studies or other documents prepared by Receiving Party or its Representatives in connection with Receiving Party's review of, or interest in, a Transaction which contain or reflect any such information; excluding in all cases, information which is or becomes available to Receiving Party or its Representatives on a nonconfidential basis from a source (other than Disclosing Party or Disclosing Party's Representatives providing the information) which, to the best of Receiving Party's knowledge after due inquiry, is not prohibited from disclosing such information to Receiving Party or its Representatives by a legal, contractual or fiduciary obligation; and Confidential Information” includes, without limitation, non-public, confidential or proprietary information regarding the Disclosing Party’s or potential target company’s actual or proposed businesses; historical and projected financial information, budgets, services, products, trade secrets, techniques, processes, operations, formulae, product specifications, know-how, processes, compositions, inventions, discoveries, designs, sketches, drawings, samples, formats, marketing and manufacturing plans and materials, analyses, strategies, forecasts, research and development; recipes, intellectual property, suppliers, concepts, ideas, names, addresses and any other characteristics, identifying information or aspects of the Disclosing Party’s or potential target company’s existing or potential customers, employees, vendors or suppliers; and any information derived, summarized or extracted from any of the foregoing.

“Representatives,” when used with reference to Receiving Party or Disclosing Party, means the directors, managers, employees, affiliates, shareholders, members, representatives (including, without limitation, advisors, attorneys and accountants) and agents of such party.

Receiving Party shall (i) keep the Proprietary Information strictly confidential, (ii) safekeep the Proprietary Information in a manner no less secure than it safekeeps its own confidential and proprietary information, (iii) segregate and keep the Proprietary Information separate from other records, documents, drawings or similar materials of its own, and (iv) not (except as required by applicable law, regulation or legal process and only after compliance with paragraph 5 below), without Disclosing Party's prior written consent, disclose any Proprietary Information in any manner whatsoever, and (v) not use or reproduce any Proprietary Information other than in connection with a Transaction; provided, however, that Receiving Party may reveal the Proprietary Information to Receiving Party's Representatives (a) who need to know the Proprietary Information for the purpose of evaluating a Transaction, (b) who are informed of the confidential nature of the Proprietary Information, and (c) who agree to act in accordance with the terms of this Agreement as if it was Receiving Party. Receiving Party will cause Receiving Party's Representatives to observe the terms of this Agreement, and will be responsible for any breach of this Agreement by any of Receiving Party's Representatives. In no event shall Receiving Party reverse engineer or decompile any software, hardware, firmware or other technology programs provided to it by Disclosing Party.
Receiving Party agrees and acknowledges that the Proprietary Information is and shall remain the sole and exclusive property of Disclosing Party and that no license or similar proprietary right is granted to Receiving Party hereunder.
Receiving Party will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 5 below), without Disclosing Party's prior written consent, disclose to any person the fact that the Proprietary Information exists or has been made available, that either Disclosing Party or Receiving Party is considering a Transaction or that discussions or negotiations are taking or have taken place concerning a Transaction or any term, condition or other fact relating to a Transaction or such discussions or negotiations, including, without limitation, the status thereof.
In the event that Receiving Party or Receiving Party's Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to disclose any of the Proprietary Information or that it is considering a Transaction, Receiving Party will notify Disclosing Party promptly so Disclosing Party may seek a protective order or other appropriate remedy or, in Disclosing Party's sole discretion, waive compliance with the terms of this Agreement. In the event that no such protective order or other remedy is obtained, or that either Disclosing Party waives compliance with the terms of this Agreement, Receiving Party will furnish only that portion of the Proprietary Information which Receiving Party is advised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Proprietary Information. Receiving Party and Receiving Party's Representatives will not be liable to Disclosing Party for such disclosure unless such disclosure was caused by or resulted from a previous disclosure not permitted hereunder.
At any time upon the request of Disclosing Party or any of Disclosing Party's Representatives, Receiving Party will either (i) promptly destroy all copies of the written Proprietary Information and Proprietary Information in other tangible media in Receiving Party's or its Representatives' possession and confirm such destruction to Disclosing Party in a written notice signed by an officer of Receiving Party, or (ii) promptly deliver to Disclosing Party at Receiving Party's own expense all copies of such Proprietary Information. All Proprietary Information will continue to be subject to the terms of this Agreement.
Receiving Party acknowledges to Disclosing Party that neither Disclosing Party nor its Representatives makes any express or implied representation or warranty as to the accuracy or completeness of the Proprietary Information, and Receiving Party agrees that no such person will have any liability relating to the Proprietary Information or for any errors therein or omissions therefrom. Receiving Party further agrees that it is not entitled to rely on the accuracy or completeness of the Proprietary Information and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Transaction, subject to such limitations and restrictions as may be contained therein.
Nothing herein shall require either party to disclose any information to the other party.
Receiving Party agrees that all (i) communications regarding a Transaction, (ii) requests for additional information, facility tours or management meetings, and (iii) discussions or questions regarding procedures with respect to a Transaction, will be first submitted or directed to Disclosing Party's President or such person as may be designated for such purpose in a writing delivered to Receiving Party. Receiving Party acknowledges and agrees that (a) Disclosing Party and Disclosing Party's Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and Disclosing Party's Representatives, in Disclosing Party's sole discretion, determine (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of a Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to a Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason, and (c) unless and until a written definitive agreement concerning a Transaction has been executed, neither Disclosing Party nor any of Disclosing Party's Representatives will have any liability to Receiving Party with respect to a Transaction, whether by virtue of this Agreement, any other written or Disclosing Party expression with respect to a Transaction or otherwise.
In no event will Receiving Party or any of its Representatives contact any director, officer, employee, vendor, customer, licensee or other business relation of Disclosing Party or any of its subsidiaries or parent companies, in each case with respect thereto or with respect to a Transaction without the prior written consent of Disclosing Party’s Chief Executive Officer.
To the extent that any information may include materials subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, legal compliance, intellectual property or other matters, each party understands and agrees that the parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All information provided by either party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement and under joint defense and other doctrines.
Receiving Party acknowledges that remedies at law may be inadequate to protect Disclosing Party against any actual or threatened breach of this Agreement by Receiving Party or its Representatives, and, without prejudice to any other rights and remedies otherwise available to Disclosing Party, Receiving Party agrees to the granting of injunctive relief in Disclosing Party's favor without proof of actual damages. Receiving Party agrees to waive any requirement for the security or posting of any bond in connection with such remedy. No failure or delay by Disclosing Party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege thereunder.
The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). Receiving Party hereby irrevocably and unconditionally agrees to the exclusive jurisdiction of any state or federal court located in Los Angeles, California, for any actions, suits or proceedings arising out of or relating to this Agreement. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING (INCLUDING ANY COUNTERCLAIM) ARISING OUT OF OR BASED UPON THIS AGREEMENT. In the event of suit, arbitration or other action in connection with this Agreement, the prevailing party shall be entitled to recover its attorneys' fees and disbursements.
To the extent that any provision of this Agreement shall be found to be illegal or unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. The language of this Agreement shall be construed without regard to the identity or status of any person or persons who drafted all or any portion of this Agreement. This Agreement contains the entire agreement between Receiving Party and Disclosing Party concerning the subject matter hereof, and supersedes all previous agreements or understandings, whether written or oral, regarding the subject matter hereof. No modifications of this Agreement or waiver of the terms and conditions hereof will be binding upon a party, unless approved in writing by such party.
This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of the signature page to this Agreement by facsimile or email with scan attachment shall be as effective as delivery of a manually executed counterpart of this Agreement.
Proprietary Information disclosed pursuant to this Agreement shall be subject to the terms of this Agreement for two (2) years following the initial date of disclosure (which may be prior to the date of execution of this Agreement), except that Proprietary Information that constitutes trade secrets of Disclosing Party shall be subject to the terms of this Agreement for as long as such information remains a trade secret under applicable law and Proprietary Information that constitutes personally identifiable information shall be subject to the terms of this Agreement forever, without expiration.