CONFIDENTIALITY AGREEMENT
THIS AGREEMENT (hereinafter referred
to as the "Agreement") made and
executed at ___ this ___day of___2001, by and
between [Company Name and address] (hereinafter
referred to as the "HIRLOSKAR", which expression shall,
unless it be repugnant to the context or meaning
thereof, be deemed to mean and include its
successors and assigns) of the ONE PART AND AB
having his office at ____ (hereinafter referred
to as the "AB", which expression shall, unless it
be repugnant to the context or meaning thereof,
be deemed to mean and include its successors and
assigns) of the OTHER PART.
WHEREAS, the parties hereto acknowledge that
HIRLOSKAR desires to engaged in certain
discussions with AB in order to evaluate a
possible business relationship (any such
transaction, the "Transaction"), and
HIRLOSKAR has requested that AB furnish it with
certain information relating to AB that is
non-public, confidential, or proprietary in
nature.
NOW THEREFORE, as a conditions to, and
consideration of AB engaging in further
discussions with HIRLOSKAR and providing
HIRLOSKAR with certain Information (as written
below), HIRLOSKAR acknowledges and agrees as
follows
1. Information Covered by this Agreement. All
information (whether written, oral, electronic,
or otherwise) furnished by AB or its
Representatives (as defined below) to HIRLOSKAR
or its Representatives and all analyses,
compilations, forecasts, studies, summaries,
notes, data and other documents and materials in
whatever form maintained, whether prepared by
HIRLOSKAR, its Representatives, or others, which
contain or reflect, or are generated from, any
such information or which reflect HIRLOSKAR's or
its Representative's review of, or HIRLOSKAR's
interest in, the Transaction is hereinafter
referred to as the "Information",
provided that the term "Information"
will not include information that (I) is or
becomes publicly available (other than as a
result of any disclosure by HIRLOSKAR of its
Representatives that it is not permitted under
this agreement), (ii) is or becomes available to
HIRLOSKAR on a non-confidential basis from a
source (other than AB or any of its
Representatives) that, to the best of HIRLOSKAR's
knowledge, is not prohibited from disclosing such
information to the HIRLOSKAR by a legal,
contractual, fiduciary or other obligations to
AB, or (iii) is known to HIRLOSKAR prior to
disclosure by AB or any of its Representatives
without violation of duty of law.
2. Confidentiality of Information. HIRLOSKAR and
its Representatives (i) will keep the information
strictly confidential and will not (except as
required by applicable law, regulation or legal
process, and only after compliance with paragraph
4 below), without AB's prior written consent,
disclose to any person or entity any Information
in any manner whatsoever and (ii) will not use
any Information in any manner (whether for
itself, any other person or entity, or otherwise)
other than solely in connection with its
consideration of the transaction. HIRLOSKAR
further agrees to disclose the Information only
to its Representatives (a) who need to know the
Information solely for the purpose of evaluating
the transaction and (b) who are informed by
HIRLOSKAR of the confidential nature of the
Information and the fact that use of the
Information is governed by this Agreement.
HIRLOSKAR to cause its Representatives to observe
the terms of this Agreement and will be
responsible for any breach of this Agreement by
any of its Representatives. In addition,
HIRLOSKAR and its Representatives shall take all
necessary actions and precautions to prevent the
disclosure, use, copying, duplicating, or
reproducing of any Information, as well as any
information the disclosure of which is limited by
the provisions of paragraph 3 below in any manner
contrary to the provisions of this Agreement.
3. Confidentiality of transaction and transaction
status. Without the prior written consent of AB,
neither HIRLOSKAR nor its Representatives will
(except as required by applicable law, regulation
or legal process, and only after compliance with
paragraph 4 below) disclose to any person or
entity (other than any person or entity
considering participating in the transaction with
the HIRLOSKAR) any information regarding a
possible transaction or information relating in
any way to the information, including, without
limitation, (I) any investigations, discussions,
or negotiations are taking or have taken place
concerning a possible transaction, including the
status thereof or the termination of discussion
or negotiations with AB, (ii) any of the terms,
conditions or other facts with respect to any
such possible transaction or its consideration of
possible transaction, or (ii) that this agreement
exists or that information exists or has been
requested or made available.
4. Mandatory Request from Third Parties for
Information. In the event that HIRLOSKAR or any
of its Representatives are legally required to
disclose any of the information or any
information the disclosure of which is limited by
the provisions of paragraph 3 above
(collectively, the "Compelled
Information"), HIRLOSKAR will notify AB
promptly in writing of the terms and
circumstances surrounding such required
disclosure. HIRLOSKAR and its Representatives
agrees not to oppose any action by AB to obtain a
protective order or other appropriate remedy and
shall co-operate fully with AB, at AB's expense,
in connection therewith. In the event that such
protective order or other remedy is obtained,
HIRLOSKAR and its Representatives will furnish
only that portion of the compelled information
that HIRLOSKAR is advised by counsel is legally
required and will use its reasonable efforts to
obtain reliable assurance that confidential
treatment will be accorded to such compelled
information.
5. No obligation to consummate Transaction. Both
the parties acknowledge and agrees that neither
of the parties have made any firm decision to
pursue any transaction with the other and agree
that both the parties will have the right at its
sole discretion without giving any reason
therefore at any time to terminate discussion
concerning a possible transaction to elect not to
pursue such transaction or to pursue transaction
with the third party without the involvement of
the other.
6 Not to Disclose. It is mutually agreed between
the parties that AB will not disclose to any
third parties, the fact of the discussions with
the HIRLOSKAR or any possible transaction with
the HIRLOSKAR to any third parties except to such
parties as authorized by and / or in consultation
with the HIRLOSKAR. It is however, agreed that
disclosure of the said information to AB's
attorneys and its authorized representatives for
the purpose of implementation of the decision, if
any to transact with the HIRLOSKAR shall be
treated as authorized disclosure.
7. No Representations as to the Accuracy of the
Information. HIRLOSKAR and its Representatives
acknowledge that neither AB nor any of its
Representatives make any express or implied
representation or warranty as to the accuracy or
completeness of the information. In addition,
neither AB nor any of its Representatives shall
have any liability to HIRLOSKAR or any other
person in connection with the use of the
information.
8. Return of Information. Upon the request of AB,
HIRLOSKAR shall return or destroy any information
in its possession of the possession of any of its
Representatives. To the extent that such
information is destroyed, HIRLOSKAR shall certify
such destruction in writing.
9. Miscellaneous Provisions. No failure or delay
in exercising any right, power of privilege
hereunder will operate as a waiver thereof, nor
will any single or partial exercise thereof
preclude any other of further exercise thereof or
exercise of any right, power or privilege
hereunder. This agreement contains the entire
agreement between the HIRLOSKAR and AB concerning
the subject matter hereof and supercedes all
previous agreements written or oral, relating to
the subject matter hereof. No modifications of or
changes to this agreement of waiver of the terms
and conditions hereof will be binding upon the
parties hereto, unless approved in writing and
signed by each of the parties hereto. This
agreement may be executed in counter parts, each
of which shall be deemed to be any original, but
both of which shall constitute the same
agreement. This agreement will be governed by and
construed in accordance with the laws of the
India .
M/s. HIRLOSKAR
By _________________________
Name :
Title :
M/s. AB
By ________________________
Name :
Title :
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