CONFIDENTIALITY AGREEMENT

THIS CONFIDENTIALITY AGREEMENT (the “Agreement”) is made this ____ day of

________ 20__ (the “Effective Date”), by and between [COMPANY NAME], a [JURISDICTION OF
FORMATION] [TYPE OF ENTITY], (“Seller”), and [COMPANY NAME], a [JURISDICTION OF
FORMATION] [TYPE OF ENTITY] (“Company”). Seller and Company are individually referred to
herein as a “Party” and collectively as the “Parties.”

WHEREAS, the Parties are interested in evaluating the potential acquisition of Seller’s business
by Company (the “Business Proposal”).

WHEREAS, the Parties have agreed to exchange certain information of a non-public nature for
use by the other Party in connection with discussing, evaluating and participating in the Business
Proposal, under and subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound hereby, agree as follows:

1. Confidential Information Defined. The term “Confidential Information” means any

confidential or proprietary business information concerning a Party or its subsidiaries or affiliates that
may have been treated as confidential or proprietary by the disclosing Party or that is of competitive or
other business value to the disclosing Party. Confidential Information includes, without limitation, trade
secrets, product information, revenue, sales or earnings information, business relationships, supplier
information, business plans and sales and marketing plans, personnel information, operations information,
manufacturing processes, methodologies, formulas, financial affairs, information with respect to legal and
regulatory compliance matters, any information relating to the disclosing Party’s past, present or
prospective clients, including client lists and other client information, and any other information that
should reasonably have been understood by the receiving Party to be proprietary because of (a) legends or
other markings; (b) the circumstances of disclosure; or (c) the nature of the information. All such
information shall be considered Confidential Information whether disclosed by electronic transmission or
oral or written disclosure and whether or not marked or otherwise expressly designated as confidential.
Confidential Information also includes: (i) the fact that the Parties have made their Confidential
Information available to the other Party, (ii) the fact that the Parties are discussing the Business Proposal,
and (iii) any information, work papers, analyses, compilations, projections, studies, documents, terms,
conditions, correspondence, facts or other materials derived or produced by either Party for the other
Party in connection with the Business Proposal. Any Confidential Information supplied by either Party
prior to the execution of this Agreement shall be subject to the same treatment as the Confidential
Information made available after the execution of this Agreement.

2. Exclusions from Definition. Confidential Information does not include any data or
information that:

a. can be established by written evidence to have been in the possession of the receiving
Party at the time of disclosure;

b. at the time of disclosure, is part of the public domain, or after the time of disclosure,
becomes part of the public domain, by publication or otherwise, except by breach of the provisions of this
Agreement;

c. has been rightfully received by a Party from a third party without restriction on disclosure
and without a breach of any obligation of confidentiality running directly or indirectly to the disclosing
Party, or a breach of this Agreement; or
 d. is independently developed by the receiving Party without use, directly or indirectly, of
any Confidential Information of the disclosing Party (the receiving Party shall bear the burden of proving
such independent development).

3. Required Disclosures. Notwithstanding anything to the contrary contained herein, the

receiving Party may, on a limited basis, disclose Confidential Information that the receiving Party is
required to disclose due to any applicable law, regulation, rule, act or order of any governmental or
judicial authority or agency, provided that, if permissible, the receiving Party promptly notifies the
disclosing Party of such compulsion in order that the disclosing Party might seek a protective order for such
Confidential Information. The receiving Party shall, in connection with this exception, disclose only that
specific Confidential Information required to be disclosed by such law, governmental or judicial authority.
Any disclosure of Confidential Information pursuant to this Section 3 shall be limited and, notwithstanding
anything to the contrary in this Agreement, shall not otherwise relieve the receiving Party from its obligations
hereunder with respect to such Confidential Information nor cause such Confidential Information to no longer
be considered Confidential Information for purposes of this Agreement.

4. Nondisclosure Obligation. Both Parties shall keep the other Party’s Confidential
Information confidential and shall not disclose such Confidential Information, in whole or in part, to any
person or entity other than its respective officers, directors, employees, agents or representatives,
including financial and legal advisors and accountants (collectively, “Representatives”) who need to
know such Confidential Information in connection with such Party’s evaluation of, or participation in, the
Business Proposal, except with the prior written consent of the other Party or as otherwise permitted
hereunder. The Representatives of each Party shall be informed by such Party of the confidential nature
of the Confidential Information, and the receiving Party shall require its Representatives to agree to
maintain the confidentiality of the Confidential Information of the other Party under the terms, conditions
and restrictions of this Agreement. The Confidential Information of each Party shall be used by the other
Party solely for evaluation of or participation in the Business Proposal, and it shall not be otherwise used
for the receiving Party’s own benefit or for any purpose detrimental to the interest of the disclosing Party.
Each Party shall take all precautions necessary to ensure that the other Party’s Confidential Information is
treated confidentially in accordance with the terms of this Agreement and shall be responsible for any
breach of this Agreement by its Representatives.

5. Ownership; Return of Confidential Information. All Confidential Information

(including tangible copies and computerized or electronic versions and summaries thereof) shall remain
the property of the Party disclosing such information. The receiving Party acknowledges that by
receiving or obtaining the other Party’s Confidential Information, it does not acquire any right, title,
privilege or license in or to the other Party’s Confidential Information, except as explicitly provided
herein. Within ten (10) business days following the receipt of a written request from the disclosing Party,
the receiving Party shall deliver to the requesting Party all tangible materials containing or embodying the
Confidential Information received from the requesting Party or destroy such information, together with a
certificate executed by an officer of such Party certifying that all such materials in its possession or
control have been delivered to the requesting Party or destroyed. Neither Party shall assert, directly or
indirectly, any right with respect to any of the other Party’s Confidential Information which may impair
or be adverse to the other Party’s ownership thereof. Notwithstanding the return or destruction of
Confidential Information, the receiving Party and its Representatives shall continue to be bound by their
obligations of confidence and other obligations hereunder.

6. No Representation or Warranty. The receiving Party understands and agrees that the
disclosing Party and its respective Representatives (a) have not made, and do not make, any
representations or warranties hereunder, expressed or implied, as to the accuracy or completeness of the
Confidential Information and (b) shall not have any liability hereunder to the receiving Party or its
Representatives relating to or resulting from the use of the Confidential Information, any errors contained
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therein or any omissions therefrom. The Parties agree that, unless and until a definitive agreement
between the Parties has been executed and delivered with respect to the Business Proposal, neither Party
will be under any legal obligation of any kind whatsoever with respect to the Business Proposal, including
any obligation to (i) consummate the Business Proposal, (ii) conduct or continue discussions or
negotiations related thereto, or (iii) enter into or negotiate a definitive agreement. The disclosing Party
reserves the right, in its sole discretion, to reject any and all proposals made by the receiving Party or on
its behalf with regard to the Business Proposal, to terminate discussions and negotiations with the
receiving Party at any time and to enter into any agreement with any other person without notice to the
receiving Party or any of its Representatives, at any time and for any reason or no reason.

7. No Waiver of Privilege. To the extent that any Confidential Information includes

materials subject to the attorney-client privilege, the disclosing Party is not waiving, and shall not be
deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or
similar protections and privileges as a result of disclosing any Confidential Information (including
Confidential Information related to pending or threatened litigation) to the receiving Party or any of its
Representatives.

8. Term; Termination. Either Party may terminate the exchange of Confidential

Information under this Agreement at any time by written notice to the other specifically referencing this
Agreement. In any event, however, the obligations of each Party to maintain the confidentiality of the
Confidential Information it has received under this Agreement and its restriction on the use of the other
Party’s Confidential Information shall continue for a period of three (3) years from the Effective Date. If
the Business Proposal is terminated for any reason, neither Party shall, without the prior written consent
of the other Party, use any of the Confidential Information received or obtained from the other Party for
any purpose.

9. Equitable Remedies. The Parties understand and agree that money damages would not
be a sufficient remedy for any breach of this Agreement and that the non-breaching Party shall be
entitled, without posting bond or other security, to seek injunctive or other equitable relief to forestall any
such breach or threatened breach, including without limitation, specific performance, temporary
restraining order, temporary or permanent injunction. Such remedy shall not be deemed to be the
exclusive remedy for any breach of this Agreement but shall be in addition to all other rights and
remedies available at law or in equity.

10. Damages. The Parties each recognize and acknowledge the competitive value and
confidential nature of the Confidential Information and the damage that could result if the Confidential
Information is misused or disclosed to third parties or if there is any other breach under this Agreement.
In connection therewith, each Party shall indemnify the other Party against any loss, damage, injury, or
liability (including reasonable attorneys’ fees and other costs of litigation, arbitration, and/or settlement)
arising out of the improper use of the Confidential Information or other breach or threatened breach of
this Agreement. Upon the breach of this Agreement, the non-breaching Party may submit, though it is
not obligated to do so, the issue of damages to arbitration, under the rules of the American Arbitration
Association for a determination of the amount of liquidated and punitive damages. The decision of the
arbitrator shall be final and binding on both Parties.

11. Attorneys’ Fees. Should any Party to this Agreement find it necessary to employ legal
counsel and bring an action at law or in equity to enforce any of the terms or conditions of this Agreement
caused by the breach or default of the other Party, the prevailing party in any such proceeding shall be
entitled to receive its reasonable attorneys’ fees and out-of-pocket costs incurred in connection with such
proceeding, in addition to any other relief to which it may be entitled.

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 12. No Waiver. No failure or delay by either Party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or privilege
hereunder.

13. Successors and Assigns. Neither Party may assign their rights arising under this
Agreement without the prior written consent of the other Party. This Agreement will inure to the benefit
of, and be binding upon, each Party’s respective successors and permitted assigns.

14. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, United States of America, without regard to its choice
of law provisions.

15. Entire Agreement; Amendment. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter hereof and supersedes all prior or simultaneous
representations, discussions, negotiations and agreements, whether oral or written. If any part of this
Agreement is found invalid or unenforceable, that part will be amended to achieve as nearly as possible
the same effect as the original provision, and the remainder of this Agreement will remain in full force
and effect. This Agreement may not be modified, supplemented or amended orally, but only by a writing
signed by authorized representatives of both Parties.

[Signature Page Follows]

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 IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized representatives to
execute and deliver this Confidentiality Agreement as of the Effective Date.

[SELLER NAME]

By:

Name:

Title:

[COMPANY NAME]

By:

Name:

Title:

[Signature Page to Confidentiality Agreement]