PDF download on proposed transaction
Confidentiality agreement in proposed transaction
The undersigned:
1. {Naam 1 (Voornaam):5.3} {Naam 1 (Achternaam):5.6}, {Adres 1 (Straat + huisnummer):20.1} , gevestigd te {Adres 1 (Stad):20.3} en ingeschreven in het handelsregister onder nummer {Inschrijvingsnummer 1:23}, hierna te noemen: ‘Verkoper’;
en
2 {Naam 2 (Voornaam):8.3} {Naam 2 (Achternaam):8.6}, {Adres 2 (Straat + huisnummer):21.1}, {Adres 2 (Stad):21.3}, en ingeschreven in het handelsregister onder nummer {Nummer 2:24}, hierna te noemen: ‘{Naam 2 (Achternaam):8.6}’;
hierna tezamen tevens te noemen: ‘Partijen’;
Considering that:
- [name] is interested in acquiring [description subject] (hereinafter: [subject]) from Seller and [name] wishes to explore the possibilities of entering into a transaction with Seller with respect to the [subject] (hereinafter: "Proposed Transaction");
- [name] wishes to examine certain information and data regarding Seller's [subject] in connection with the Proposed Transaction;
- Seller has certain information and data at its disposal in connection with the Proposed Transaction which it wishes to make available to [name] under terms and conditions to be further specified in this Confidentiality Agreement (hereinafter referred to as "Confidentiality Agreement");
- Seller shall immediately after signing this Confidentiality Agreement disclose such information to [name];
declare that they have agreed as follows:
1 Secrecy
1.1 [name] is bound to maintain secrecy (hereinafter referred to as: 'Confidentiality') about the Proposed Transaction and/or its interest in it, (the contents of) the Confidentiality Agreement as well as all information, documents and/or data of any nature whatsoever (including oral, written and/or digital) which may include information, documents and/or data of a technical, operational, administrative, commercial, legal, fiscal, and/or financial (-economic) nature and/or which may relate to intellectual/industrial property and/or which may relate to Seller and/or the shareholder and/or directors of Seller, which information has been and/or will be obtained by [name] from Seller and/or its advisors and/or information which has been and/or will be obtained by Seller and/or its advisors to [name] (and/or its shareholders, directors, supervisory directors, employees c.respectively employees and/or advisors,) has been and/or will be disclosed, has been and/or will be communicated and/or has been and/or will be given access to, including procedures that are or will be followed for this purpose and/or in respect of the Proposed Transaction (hereinafter collectively referred to as: "Confidential Information").
1.2 [name] undertakes and warrants that the Confidential Information will only be used and/or applied in order to investigate the possibilities in respect of the Proposed Transaction and therefore, in any event, will not otherwise be used in any way for (its own) use or to (indirectly) benefit therefrom.
1.3 [name] is only permitted to disclose, communicate or allow access to Confidential Information to persons within its company and/or organization, including its shareholders, directors, supervisory directors and employees or employees after it has obtained prior written and explicit permission from the Seller.
1.4 [name] is only permitted to engage professional external advisors and to disclose, communicate or allow access to Confidential Information to these professional advisors with the prior written and explicit consent of the Seller.
1.5 [name] is obliged and warrants that the Confidentiality and other terms and conditions of this Confidentiality Agreement as applicable to [name] will be observed by all its shareholders and directors and supervisory directors and employees or employees and advisors.
Furthermore, [name] guarantees and warrants that the persons to whom Seller has granted permission as referred to in the preceding two paragraphs of this article accept or have accepted the terms and conditions of this Confidentiality Agreement that apply to [name] in compliance with these provisions as if they had co-signed this Confidentiality Agreement as Seller's other party in this respect.
1.6 The Confidentiality does not apply if (i) this concerns information and/or data that is common knowledge and [name], upon receipt of this information and/or data, immediately informs Seller in writing, stating reasons, (ii) the disclosure thereof is required by law, in which case [name] immediately informs Seller in writing and verbally and takes all possible actions to prevent or limit such disclosure or (iii) Seller gives prior explicit and written consent for disclosure.
1.7 The Confidentiality will continue irrespective of whether or not the Proposed Transaction will (partly) go ahead.
1.8 At the written request of [name], [name] or its professional external advisors may - at the sole discretion of the Seller - be given the opportunity by the Seller to consult with or put questions to employees, representatives and/or advisors of the Seller, insofar as this relates to the Proposed Transaction. Such consultations must be requested in time and in writing within the period referred to in Article 5 of this Confidentiality Agreement.
1.9 [name] accepts full and unlimited responsibility and liability for all conduct or omissions in relation to the provisions of this Confidentiality Agreement.
2 Making Confidential Information Available
2.1 The provision of Confidential Information shall not be deemed to constitute any offer and/or invitation by Seller to a result which might and/or should lead to or create any legitimate expectation on the part of [name] that the Proposed Transaction will be entered into and/or implemented by Seller and/or Seller is obliged to attempt to reach agreement to that effect.
3 Copies
3.1 [name] or, with due observance of the provisions of Clause 1 of this Confidentiality Agreement, any professional advisors it engages shall only be permitted to copy and/or reproduce Confidential Information with the prior written and express consent of Seller.
4 Returns information
4.1 [name] is obliged at the first request of Seller to immediately return all Confidential Information, copies and/or duplications thereof to Seller or to a third party to be designated by Seller as well as to remove all Confidential Information from computers, word processors or any other type of (digital) processor of information in which Confidential Information is stored and to return it to Seller and if this is impossible - which, if [name] is of the opinion that this is impossible, to be submitted to the Seller for binding assessment in writing, as well as to immediately destroy all notes, memos, notes, descriptions, memoranda and the like which contain Confidential Information or to which reference is made directly or indirectly or which relate to the Confidential Information, to be delivered to the Seller and if this is impossible, to be submitted to the Seller for binding assessment in writing, if [name] is of the opinion that this is impossible.
5 Non-exclusivity
5.1 The Seller grants [name] a non-exclusive and non-binding option to the Proposed Transaction until [date], under the terms and conditions referred to in this Confidentiality Agreement. [name] is not allowed to (in)indirectly get in touch with other (potential) (prospective) Candidates or to continue to do so or invite them to do so. If on the said date the Parties have not reached agreement on terms and conditions acceptable to the Seller and/or its shareholder regarding the definitive transaction, this option of [name] will lapse, without the Seller being obliged to pay any costs and/or damages, including any (lost/future) profits.
6 Penalty clause
6.1 For each breach and/or violation of (any provision of) this Confidentiality Agreement, [name] shall forfeit in favor of Seller and/or its current sole shareholder - at the sole discretion of such shareholder - an immediately payable fine of € [amount] (say: [amount] ) per violation or breach per day to be increased by an amount of € [amount] (in words: [amount] ) for each day that the violation in question has continued and/or continues, without prejudice to the right of the Seller and/or its current sole shareholder - such at the sole option of this shareholder - to claim full damages.
7 Disclaimer
7.1 Seller provides the Confidential Information on an "as is" basis. Seller in no way guarantees and/or warrants that the Confidential Information provided is and/or will be accurate and/or complete and/or non-misleading and is and/or will not be liable for any damages on the part of [name] and/or third parties resulting from and/or related to such Confidential Information. Examination, examination, use, disclosure, exploitation - all to the extent permitted under this Confidentiality Agreement - and/or return of the Confidential Information by [name] and/or third parties shall be entirely for the account and risk of [name].
8 Miscellaneous
8.1 The parties reciprocally waive the right to rescind or annul this Confidentiality Agreement out of court or to seek judicial redress.
8.2 If and to the extent that one or more provisions of this Confidentiality Agreement are void or null and void, they will be replaced by provisions that will approximate the content of the void or null and void provision as closely as possible. If and insofar as necessary, the Parties shall consult further in this respect.
8.3 This Confidentiality Agreement is governed exclusively by Dutch law.
8.4 All disputes arising between the Parties as a result of this Confidentiality Agreement and the performance or non-performance thereof shall be submitted exclusively to the competent court in the district [which district], location [which location].
Thus made and signed in triplicate
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{Bedrijfsnaam 1:19}
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{Bedrijfsnaam 2:9}
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