CONFIDENTIALITY, NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into by and between the undersigned Party designated as “Receiver” (“Receiver”), and the undersigned Party designated as “Discloser” (“Discloser”). The “Parties” to this Agreement are Receiver and Discloser. The Parties have been in discussion (“Discussions”) regarding a potential transaction involving Discloser’s business (“Potential Transaction”). Receiver desires to continue Discussions and obtain, and Discloser is willing to provide Receiver with, certain “Confidential Information”, but only if Receiver treats the same as confidential and proprietary to Discloser under the terms of this Agreement. In consideration of the foregoing, and the covenants and agreements set forth herein, the Parties agree as provided in this Agreement.
1. “Confidential Information” means Discloser’s proprietary or confidential data, documents, records and other information, including those relating to its business, plans, ideas, concepts, know-how, strategies, customers, suppliers, employees, opportunities, financial statements and information, discussion notes, compendiums, indices and organization of Discloser’s comments, insights, extrapolations, and all discussions resulting from participation with Discloser, including study group notes and comments, entity and project information and returns, cost and pricing information, and related matters, and trade secrets, and any such information of third parties which Discloser has agreed, agrees or is required to maintain as confidential, and the existence and content of this Agreement. Confidential Information also includes (i) any and all analyses, compilations, studies or other documents prepared by Receiver, or any of Receiver’s affiliates, partners, directors, officers, employees, representatives, agents, financing sources or advisors (collectively, its “Agents”), which contain or otherwise reflect such Confidential Information, either in its entirety or in summary form, (ii) the existence and content of any communications between the parties or the Discussions, (iii) the fact that Confidential Information has been delivered to Receiver or that Receiver has reviewed any Confidential Information, or (iv) the fact that Receiver or Discloser has expressed a possible interest in the Potential Transaction or that Discloser has any interest in any transaction. Confidential Information does not include information which (i) is or becomes generally available to the public or the industry in which Discloser is engaged in business, other than as a result of disclosure in violation of this Agreement, or (ii) is known to the Receiver prior to the execution of this Agreement from a source other than Discloser or its Agents, or (iii) is made available to Receiver, either prior or subsequent to the execution of this Agreement, from a source other than Discloser or its Agents, and not, to Receiver’s knowledge, in violation of Discloser’s proprietary rights. All of Receiver’s insights or comments related to the Potential Transaction are deemed works for hire belonging to Discloser and are, therefor, “Confidential Information” as well.
2. Receiver agrees that Receiver and its Agents shall at all times hold the Confidential Information in confidence, and that none of them will, without the prior written consent of Discloser, disclose or divulge any of the same in any manner whatsoever, in whole or in part to anyone, including any employee of Discloser. However, Receiver may disclose or divulge Confidential Information to those of its Agents who, in Receiver’s reasonable judgment, need to know the Confidential Information in order for Receiver to evaluate the Potential Transaction provided that each such Agent agrees to be bound by the terms of this Agreement as a Receiver and does not breach or default under any obligation of Receiver in this Agreement. Receiver agrees that, as between Discloser and Receiver, all of the Confidential Information which is provided directly or indirectly by Discloser is, will be and shall always remain the sole and exclusive property of Discloser.
3. Discloser of Confidential Information to Receiver, or to its Agents, is for the sole purpose of permitting Receiver to review the assets, liabilities, operations and business of Discloser in order to evaluate or implement the Potential Transaction. The Confidential Information will be received by Receiver and its Agents solely for such purpose and for no other purpose or benefit. Neither Receiver nor its Agents will use any Confidential Information (i) in furtherance of Receiver’s or any other business, or (ii) to the detriment of Discloser, or (iii) in any manner competitive with Discloser.
4. Upon Discloser’s written request, (i) Receiver will cause all Confidential Information and all copies thereof to be promptly returned to Discloser or destroyed, and any analyses, compilations, studies or other documents prepared by or for Receiver or its Agents from the Confidential Information to be destroyed, (ii) Receiver shall promptly confirm any such destruction in writing to Discloser, and (iii) unless permitted by Discloser in writing, neither Receiver nor any person or entity receiving any of the same from Receiver shall retain any copies thereof.
5. Neither Discloser nor its Agents make any representations or warranties as to the accuracy or completeness of any Confidential Information, and each Party expressly disclaims any and all liability of Discloser based upon such Confidential Information, or the accuracy or completeness thereof.. Confidential Information is not furnished for use with any offer or sale of securities or to satisfy any federal or state securities laws. Discloser may terminate the Discussions with Receiver at any time, with or without any reason. Discloser is under no obligation to negotiate or enter into the Potential Transaction nor, by virtue of this Agreement, any transaction or agreement with Receiver.
6. No failure or delay by either Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege under this Agreement. This Agreement may not be amended or modified, or assigned by Receiver, except by written instrument signed by both Parties. This Agreement shall inure to the benefit of the Parties and Discloser’s successors and assigns. No licenses or rights under any patent, trademark, copyright or trade secret are granted or implied by this Agreement.
7. Receiver agrees that, for a period of two (2) years beginning on the date of this Agreement, neither Receiver nor any of its Agents will, directly or indirectly, without the prior written consent of Discloser:
7.1 hire, solicit to hire (other than by non-targeted use of recruiters or general advertising) or seek to cause to leave the employ of Discloser, any employee of Discloser, or any of its affiliates, with whom Receiver has had contact, or who became known to Receiver as a result of the Discussions; or
7.2 contact any customer, supplier or employee of Discloser regarding Discloser, or any Confidential Information, without the prior written consent of Discloser, or with intent to circumvent Discloser or violate this Agreement; or
7.3 interfere (other than by non-targeted general advertising) in the relationship of Discloser with any of its agents, representatives, customers, referral sources or suppliers, with whom Receiver has had or who became known to Receiver, as a result of the Discussions. For purposes of this Agreement, “customers” means any person or entity to whom Discloser directly provided products or services during the one (1) year period prior to the date of this Agreement.
8. If Receiver is required by law, regulation or court order to disclose any Confidential Information, Receiver will promptly notify Discloser in writing prior to making any such disclosure in order to permit Discloser to seek a protective order or other appropriate relief from the proper authority. Receiver agrees to cooperate with Discloser’s efforts to seek such order or other relief. Receiver further agrees that if Discloser is not successful in precluding the requested legal body from requiring the disclosure of Confidential Information, Receiver will disclose only that portion of the Confidential Information which is legally required, and will exercise all reasonable efforts to assure that confidential treatment will be afforded the Confidential Information.
9. Receiver recognizes that irreparable injury may result to Discloser and its business and property if Receiver breaches or defaults upon any of the provisions of this Agreement, and that money damages may not be sufficient or adequate remedy for any such breach or default. Receiver, therefore, agrees that if it or its Agents should engage in any act in violation or threatened violation of any of the provisions of this Agreement, Discloser shall be entitled to seek, in addition to other remedies, damages, expenses and relief available under applicable law, a temporary restraining order, preliminary injunction and/or permanent injunction, all without bond, prohibiting Receiver and its Agents from engaging in any such act, or specifically enforcing this Agreement, as the case may be. Receiver shall not assert any claim or defense that Discloser is not being irreparably harmed, or that money damages are a sufficient remedy, or that a bond shall be required. The prevailing party in any such proceedings shall be awarded reasonable attorneys’ fees against the non-prevailing party.
10. This Agreement shall be governed by and construed in accordance with the laws of the state of Illinois without giving effect to the principles of conflicts of laws. This Agreement may be executed in multiple counterparts, and by the Parties on separate counterparts, all of which together shall constitute a single agreement.
By clicking below, you electronically reaffirm this Agreement, agree not to disclose any information inconsistent with the terms of this Agreement, and reaffirm the ownership of Confidential Information in Mind-Eye Institute, LLC and its predecessors and affiliates.
The Mind-Eye Institute, LLC:
Name: Deborah Zelinsky, O.D., F.N.O.R.A., F.C.O.V.D.