CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with our possible interest in participating in a financial transaction with ________. (the "Company"), which may include a possible recapitalization, restructuring, joint venture or sale of some of the Company, or any of its assets, securities or business, the Company will be furnishing us with certain information and materials of a non-public, confidential, or proprietary nature. Such information and materials, in whole or in part, together with analyses, compilations, studies or other documents or materials prepared by us, our agents, our directors, our affiliates, or our employees (collectively, the "Representatives"), which contain or otherwise reflect or are generated from such information and our review of or interest in the Company, is hereinafter referred to as the "Information" provided, however, that
"Information" shall not include information that (a) is or becomes generally available to the public other than as a result of a disclosure by us or any Representative, (b) is or becomes available to us on a non-confidential basis from a source other than the Company or Hallmark Capital which is not bound by a duty of confidentiality to you or the Company, (c) is independently developed by us solely from publicly available information, or (d) is disclosed pursuant to an order or requirement of a court, government administrative agency or other governmental body.
In consideration of the Company furnishing us with the Information, we agree that:
1. We shall use best efforts to keep the Information confidential and the Information shall not, without the prior written consent of the Company, be disclosed by us or any Representatives and shall not be used by us or any Representatives other than solely in connection with our evaluating the transactions contemplated above or pursuant to that certain Engagement Letter dated __________ between the Company and us (the "Engagement Letter"). In disclosing the Information to Representatives, we agree to disclose the information only to those Representatives who need to know the information exclusively for the purpose of evaluating a possible transaction with the Company, who are informed by us of the strictly confidential nature of the information, and who shall have previously agreed for our and the Company's benefit to be bound by the terms and conditions of this Agreement. In any event, we shall be responsible for any breach of this Agreement by the Representatives.
2. All copies of the Information, except for that portion of the Information that consists of analyses, compilations, studies, or other documents prepared by the Representatives, will be returned to the Company promptly upon request without our or our Representatives retaining any copies thereof. That portion of the Information which consists of analyses, ompilations, studies, or other documents prepared by the Representatives will be held
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