1. Background. The Parties intend to engage in discussions and negotiations concerning a potential business transaction between Counterparty and seller with MORR as Seller's representative. Each Party anticipates that it will disclose or cause to be disclosed to the other Party certain of its Confidential Information for the purpose of enabling each Party to evaluate and negotiate a potential business transaction (the “Purpose”). The Parties have entered into this Agreement to ensure the confidentiality of such Confidential Information. In this Agreement, the Party disclosing Confidential Information is referred to as the “Disclosing Party,” the Party receiving Confidential Information is referred to as the “Receiving Party,” and each Party’s and its directors, officers, employees, agents, financing authorities and third-party advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) are referred to as that Party’s “Representatives.”
2. Confidential Information. As used in this Agreement, the term “Confidential Information” refers to any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its Representatives or otherwise and irrespective of the form of communication) that is furnished to the Receiving Party or its Representatives by the Disclosing Party or its Representatives.
3. Confidentiality Obligations. The Receiving Party may use the Disclosing Party’s Confidential Information only for the Purpose and shall protect the confidentiality of such Confidential Information with at least the same degree of care as the Receiving Party uses to protect the confidentiality of its own confidential information, but in no event less than reasonable care, provided that the Receiving Party may make any disclosure of such Confidential Information (i) to the extent the Disclosing Party gives its prior consent; and (ii) to the Receiving Party’s Representatives who need to know such information in connection with the Purpose and who are similarly bound by written agreement with, or otherwise owe a professional duty to, the Receiving Party to protect the confidentiality of such Confidential Information, provided that the Receiving Party shall be responsible for any action or omission by any of its Representatives that, if committed by the Receiving Party, would constitute a breach of this Agreement.
4. Exceptions. Section 3 notwithstanding, the Receiving Party shall have no confidentiality obligations with respect to any Confidential Information to the extent that such Confidential Information (i) is or becomes generally known to the public without the Receiving Party or its Representatives violating this Agreement; (ii) is rightfully in the Receiving Party’s possession at the time of disclosure without the Receiving Party having any confidentiality obligations to the Disclosing Party with respect thereto; (iii) becomes known to the Receiving Party through disclosure by sources other than the Disclosing Party or its Representatives without such sources, to the knowledge of the Receiving Party, violating any confidentiality obligations to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or reliance upon the Disclosing Party’s Confidential Information.
5. Transaction Information. Except as otherwise provided in this Agreement, neither Party nor any of its Representatives shall disclose to any other person or entity (i) the existence of this Agreement; (ii) the fact that Confidential Information of the other Party has been made available to it; (iii) that discussions are taking place concerning a possible transaction between the Parties; (iv) any of the terms, conditions or other facts with respect thereto; or (v) the status of such discussions (collectively, the “Transaction Information”).
6. Legally Required Disclosure. If the Receiving Party or any of its Representatives is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process, or by the rules or regulations of any regulatory authority having jurisdiction over the Receiving Party or a stock exchange on which the Receiving Party’s securities are traded) to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall, except as prohibited by law, provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may seek, at the Disclosing Party’s expense, a protective order or other remedy and/or waive compliance with the provisions of this Agreement. If the Disclosing Party seeks a protective order or other remedy, the Receiving Party shall provide such cooperation as the Disclosing Party shall reasonably request. If, in the absence of a protective order or other remedy or the receipt by the Receiving Party of a waiver from the Disclosing Party, the Receiving Party or any of its Representatives is legally required to disclose the Disclosing Party’s Confidential Information to any person or entity, the Receiving Party or its Representatives may, without liability hereunder, disclose to such person or entity only that portion of the Disclosing Party’s Confidential Information that is legally required to be disclosed, provided that the Receiving Party and its Representatives shall exercise reasonable efforts to minimize the disclosure of the Disclosing Party’s Confidential Information.
7. Acknowledgments. Each Party acknowledges and agrees that (i) it shall not receive under this Agreement, or by implication, any right, title or interest in, or any license to, the other Party’s Confidential Information or any intellectual property rights therein, except to the extent expressly set forth herein; and (ii) nothing in this Agreement shall obligate either Party to disclose any information to the other Party.
8. Definitive Transaction Agreement. Each Party acknowledges and agrees that (i) no agreement providing for a transaction involving the Parties shall be deemed to exist unless and until a definitive written transaction agreement has been executed and delivered by or on behalf of each Party, and each Party hereby waives in advance any claims (other than in connection with a breach or alleged breach of this Agreement) in connection with any transaction between the Parties unless and until the Parties shall have entered into a definitive written transaction agreement; and (ii) unless and until a definitive written transaction agreement has been executed and delivered by or on behalf of each Party, neither Party will be under any legal obligation with respect to any transaction by virtue of this Agreement or any other communication with respect to such transaction, except for the matters specifically agreed to herein. For purposes of this Agreement, the term “definitive written transaction agreement” does not include any preliminary written agreement or executed letter of intent or term sheet or any written or verbal communications between the Parties. Each Party reserves the right, in its sole discretion, to reject any and all proposals made by the other Party with regard to a transaction between the Parties and to terminate discussions and negotiations with the other Party at any time and for any reason.
9. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” UNDER THIS AGREEMENT AND EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT THERETO, INCLUDING, WITHOUT LIMITATION, THAT SUCH CONFIDENTIAL INFORMATION IS ACCURATE OR COMPLETE FOR ANY PURPOSE.
10. Equitable Relief. Each Party acknowledges that the provisions of this Agreement are necessary and reasonable for the protection of the respective business and goodwill of the Parties. Each Party further acknowledges that any breach of this Agreement will cause the other Party substantial and irreparable injury and that money damages may not be a sufficient remedy for such breach. Therefore, in the event of any breach, in addition to other available remedies, the Disclosing Party shall have the right to seek specific performance and other injunctive or equitable relief without showing of irreparable harm or posting of bond or other security.
11. Duration of Obligations. This Agreement shall apply only to Confidential Information disclosed prior to the first anniversary of the Effective Date (the “Final Disclosure Date”). The confidentiality obligations set forth in Section 3 shall continue with respect to each item of Confidential Information until the third anniversary of initial disclosure of such item to the Receiving Party or its Representatives pursuant hereto, termination of this Agreement notwithstanding.
12. Return of Confidential Information. The Receiving Party shall, upon written request by the Disclosing Party, promptly return to the Disclosing Party or destroy, per such request, all Confidential Information received by the Receiving Party from the Disclosing Party or its Representatives (and all reproductions thereof) to the extent not previously returned or destroyed, provided such written request is provided no later than ninety (90) days immediately following the earlier of (a) the Final Disclosure Date and (b) the termination date of this Agreement. In addition, upon receipt of such written request, the Receiving Party shall promptly destroy (i) any notes, reports or other documents prepared by the Receiving Party that contain or are based on, in whole or in part, the Disclosing Party’s Confidential Information; and (ii) any of the Disclosing Party’s Confidential Information that is in electronic form or is otherwise incapable of being returned to the Disclosing Party. Notwithstanding the foregoing, the Receiving Party shall be entitled to retain electronic copies of the Disclosing Party’s Confidential Information created in connection with routine, automated information system back-ups, provided that those copies are not readily accessible to the Receiving Party.
13. Termination. Each Party shall have the right to terminate this Agreement for any reason upon fifteen (15) days’ prior written notice to the other Party. Termination shall be in addition to, and shall not prejudice, any of the Parties’ remedies at law or in equity. Sections 3-6, 11-13 and 18- 19 shall survive termination in accordance with their terms.
14. Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Parties relating to the Purpose, provided that any Confidential Information disclosed by either Party to the other Party prior to the Effective Date pursuant to any prior written agreement shall continue to be subject to any confidentiality obligations set forth therein. This Agreement may only be amended by written instrument signed by both Parties. No rule of strict construction shall be applied against either Party with respect to the interpretation of this Agreement.
15. Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign this Agreement in whole or in part, or any of the rights hereunder, without the other Party’s prior written consent, except to a successor in connection with a reorganization or an acquisition of all or substantially all of its capital stock or business assets to which this Agreement relates. Any assignment made in violation hereof shall be wholly void and invalid, the assignee shall acquire no rights, and the non-assigning Party shall neither recognize, nor be required to recognize, the assignment.
16. No Waiver. No waiver by either Party of any right or remedy hereunder shall be valid unless set forth in writing and signed by the Party giving such waiver. No waiver by either Party with respect to any default or breach shall be deemed to extend to, or affect any rights arising from, any prior or subsequent default or breach.
17. Notices. All notices hereunder shall be in writing and shall be deemed delivered one business day after it is sent for next business day delivery via a reputable overnight courier service. Either Party may give any notice hereunder using any other means (including personal delivery, messenger service, ordinary mail or electronic mail), but no such notice shall be deemed duly given until the Party for whom it is intended actually receives it. Any Party may change the address to which notices are to be delivered by giving the other Party notice in the manner herein set forth.
18. Governing Law. The interpretation, enforcement and validity of this Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any conflict or choice of law provision.
19. Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by facsimile or other electronic reproduction signature. EXECUTED by the authorized representatives of the respective Parties.
MARIA G. MELONE
MORR DENTAL SOLUTIONS, LLC
Maria G. Melone, CPA, CVA
MORR Dental Solutions, LLC
1800 West Park Drive, Suite 300
Westborough, MA 01581
Phone: 508-926-2400 • Fax: 508-616-2914
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