February 9, 2016
Confidential
[Name of Recipient Company]
[Address]
[Address]
Ladies and Gentlemen:
Civitas Media, LLC, a Delaware limited liability company (the “Company”), and
________________ (“Recipient”) are discussing the possibility of entering into a possible business
arrangement (the “Relationship”) involving certain of the Company’s real property and in the course of
such discussions, Recipient and the Company anticipate that the Company, Versa Capital Management,
LLC (“Versa”), and their respective subsidiaries, affiliates and representatives (collectively, the
“Company Group”), will disclose to the Recipient confidential, financial and other information relating to
the Company’s assets and business (the “Business”). The Company Group and the Recipient wish to
protect the information disclosed by the Company Group to the Recipient. Therefore, in consideration
of these premises and the benefits to be derived from the disclosure of confidential information by the
Company, Recipient, intending to be legally bound, hereby agrees as follows:
1.
Recipient shall keep confidential any and all information disclosed or revealed to
it by or on behalf of the Company Group, whether written or oral, whether before or after the date of
this letter agreement (this “Agreement”), as well as any other information of, regarding or relating to
the Business including without limitation, property, technical data or know-how, information relating to
research, products, services, customers, markets, costs, developments, inventions, processes, marketing
or finances, whether or not such information is designated to be confidential or proprietary, and any
other materials that have not been made available to the general public by the Company Group
(“Evaluation Material”). For purposes of this Agreement, Evaluation Material shall also include all
documents which are prepared by (a) any member of the Company Group, or (b) Recipient and its
Representatives (as defined herein), including all correspondence, memoranda, notes, summaries,
analyses, models, extracts of and documents and records reflecting, based on or derived from
Evaluation Material as well as all copies and other reproductions thereof, whether in writing or stored or
maintained in or by electronic, magnetic or other means, media or devices. Failure to mark any
Evaluation Material as confidential or proprietary shall not affect its status as Evaluation Material under
the terms of this Agreement.
2.
Recipient shall maintain in confidence all Evaluation Material and shall take all
reasonable precautions to ensure that Evaluation Material is not disclosed or disseminated to any other
persons or published or reproduced, including, at a minimum, those precautions that it utilizes to
protect its own confidential information. Recipient shall not use such Evaluation Material for any reason
other than in connection with its consideration of the Relationship without the prior written consent of
the Company. Recipient may disclose Evaluation Material to its directors, officers, employees,
consultants or advisors (collectively, “Representatives”), provided that: (a) disclosure of the Evaluation
Material to any such Representative is required in connection with Recipient’s consideration of the
Relationship; (b) Recipient informs such Representative of the confidential nature of the Evaluation
Material and such persons are bound to comply with the terms of this Agreement; and (c) Recipient
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institutes security procedures to account for and safeguard all copies of any document or electronic file
containing any Evaluation Material. A breach of this Agreement by any Representative of Recipient shall
be deemed to be a breach of this Agreement by Recipient, and Recipient will be responsible for any such
breach. In addition, without the prior written consent of the Company, Recipient will not, and will direct
its Representative not to, disclose (other than disclosure expressly permitted by the terms hereof) to
any person either the fact that discussions or negotiations are taking place concerning the Relationship
or any of the terms, conditions, or other facts with respect to the Relationship, including the status
thereof. Recipient represents that each of its directors, officers, employees and other firm personnel is
formally apprised of his or her obligations concerning the confidentiality of all client affairs and
information.
3.
At the request of the Company, Recipient shall discontinue any use of
Evaluation Material, return to the Company all material furnished by the Company Group that contains
Evaluation Material, and erase or destroy any Evaluation Material contained in computer memory or
data storage apparatus. Notwithstanding the foregoing, the Company acknowledges that in the ordinary
course of Recipient’s business and as a part of Recipient’s customary practices, after the destruction and
deletion of other copies of the Evaluation Material, electronic copies of such Evaluation Material may still
remain on hard drives, backup tapes and similar formats, and the Company acknowledges that, provided
such Evaluation Material is not used or disclosed by Recipient or its Representatives contrary to the terms
of this Agreement and is not accessed by any Representatives other than counsel and information
technology personnel, retention of such remaining copies shall not be deemed a breach of this Agreement.
The Recipient’s return, destruction or retention of any Evaluation Material will not affect any of its
obligations under this Agreement, including the obligation to keep the Evaluation Material confidential.
Recipient will confirm in writing to the Company that Recipient has taken all actions described in this
paragraph.
4.
This Agreement shall remain in effect from the date of this Agreement until the
second anniversary of the date of this Agreement, but shall not apply to Evaluation Material that: (a) at
the time of disclosure by the Company Group is in, or after disclosure by the Company Group becomes
part of, the public domain, other than through an improper act or omission on the part of Recipient or
on the part of any of Recipient’s Representatives; (b) was in Recipient’s possession at the time of
disclosure by the Company Group, as shown by written evidence, and was not acquired, directly or
indirectly, from the Company Group; or (c) Recipient receives from a third party, provided that such
Evaluation Material was not obtained by such third party, directly or indirectly, from, or on behalf of, the
Company Group.
5.
In the event that either Recipient or its Representatives receives a subpoena,
order or request to disclose any Evaluation Material or other information concerning the Company,
Recipient will, except as prohibited by law or if such subpoena, order or request is received pursuant to
regulatory oversight, provide the Company with prompt notice of such receipt(s) so as to enable the
Company to seek an appropriate protective order, to consult with the Recipient with respect to taking
steps to resist or narrow the scope of such request or process, and/or to waive compliance in whole or
in part with this Agreement to maintain confidentiality of the Evaluation Material. If, but only to the
extent that, following delivery of the foregoing notice, and in the absence of a protective order or
receipt of a waiver under this Agreement, Recipient or its Representatives are compelled to disclose
Evaluation Material or other information concerning the Company, Recipient and its Representatives
may disclose such Evaluation Material or other information without liability to the Company under this
Agreement.
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6.
All contacts with the Company or requests for information shall be made
through STREAM Capital Partners, LLC (“SCP”) or Versa. Recipient will not contact the Company’s
personnel, customers, suppliers, lenders or agents without prior written approval by Versa. Without
Versa’s prior written consent, the Recipient shall not pursue, discuss, negotiate, participate in or
consider a proposed credit transaction or other arrangement with or involving the Company, or any of
the Company’s securities, debt, interests, assets or business operations independent of Versa.
Evaluation Material has been and will be provided to Recipient by the Company Group with the express
understanding that neither the Company Group nor the Recipient is obligated to enter into any further
agreement relating to the Relationship.
7.
Recipient agrees that, for a period commencing on the date hereof and ending
on the second anniversary of the date hereof, Recipient shall not, and shall cause its Representatives not
to, without Versa’s prior written consent, directly or indirectly solicit or hire for employment any person
who is currently, or at any time during the period commencing on the date of this Agreement and
ending on the second anniversary of the date of this Agreement becomes, employed by the Company
Group; provided, however, that the foregoing shall not prohibit any general solicitation of employees
that is not targeted at such persons.
8.
Recipient acknowledges that it is impossible to measure fully, in money, the
injury that will be caused in the event of a breach or threatened breach of any of the provisions of this
Agreement and the Company shall be entitled to injunctive relief to enforce the provisions of this
Agreement, without the need to post a bond or other security and without prejudice to any other
remedy that the Company may have at law or in equity. The Company shall be entitled to recover all
reasonable expenses, including reasonable attorneys’ fees, incurred in connection with efforts to
enforce this Agreement.
9.
This Agreement and the rights and obligations of the Company and the
Recipient hereunder shall be governed by the laws of the State of Delaware, notwithstanding any
conflict-of-law doctrines of the State of Delaware or any other jurisdiction to the contrary.
10.
This Agreement contains the entire agreement and understanding of the
Company and the Recipient relating to the subject matter hereof and merges and supersedes all prior
discussions, agreements and understandings of every nature between them. This Agreement may not
be changed or modified, except by an agreement in writing signed by both of the Company and
Recipient. If any provision of this Agreement is later determined to be void, invalid or unenforceable for
any reason, such provision shall be deemed amended to delete therefrom the portion thus adjudicated
to be void, invalid or unenforceable, such amendment to apply only to the operation of such provision in
the particular jurisdiction in which such adjudication is made, and the validity and enforceability of all of
the remaining provisions of this agreement shall not be affected.
11.
Although Recipient understands that the Company has endeavored to include in
the Evaluation Material information believed to be relevant for the purpose of Recipient’s investigation,
Recipient further understands that, except as may otherwise be expressly agreed in writing, the
Company Group does not make any representation or warranty as to the accuracy or completeness of
the Evaluation Material. Recipient agrees that neither the Company Group nor any of the Company
Group’s representatives shall have any liability to Recipient or any of its Representatives resulting from
the use of the Evaluation Material by Recipient or its Representatives
*****
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If the foregoing is acceptable to you, please execute and return one copy of this
Agreement, whereupon this Agreement shall constitute our binding agreement with respect to the
subject matter hereof.
Very truly yours,
Civitas Media, LLC
By: _____________________________
Name:
Title:
Accepted and agreed to as of the
date first set forth above:
Recipient:
________________________________
By: _____________________________
Name:
Title:
[Signature page to Confidentiality Agreement]