GREEN HORIZON and Company are each individually referred to herein as a “Party” and collectively as the “Parties”.
WHEREAS, GREEN HORIZON and Company wish to conduct discussions regarding a possible investment in Green Horizon Opportunity Fund, LLC . (“Proposed Investment”);
WHEREAS, each Party anticipates disclosing, or causing its “Affiliates” (as defined herein to mean any other entity that, directly or indirectly through one or more intermediaries, is in control of, is controlled by, or is under common control with one of the Parties) to disclose certain of its or their confidential, proprietary, or sensitive business or technical information to be utilized for the sole purpose of evaluating the Proposed Investment.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration the receipt and sufficiency of which are acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
(a) Confidential Information. “Confidential Information” means all information, data, knowledge and know-how (in whatever form and however communicated) that is or has been disclosed by or on behalf of one Party or its Affiliates (“Disclosing Party”) to the other Party or its Affiliates (“Receiving Party”) together with all notes, memoranda, summaries, analyses, compilations and other writings prepared by or for the Receiving Party relating in whole or in part thereto, that contain, reflect or are based upon, in whole or in part such information and data. This Confidential Information may include, but is not limited to:
- Business and marketing plans, strategies and programs;
- Financial information of any kind;
- Business methods and procedures;
- Technical information such as blueprints, designs, drawings, trade secrets, unpublished patent applications, software;
- Vendor information;
- Contractual terms; and,
- Information that is by its nature or is traditionally recognized by a reasonable person as proprietary and confidential in the context and circumstances in which it is known or used, whether marked as such or not.
For the avoidance of doubt, information, data, knowledge or know-how, as well as feedback, suggestions, or improvements that the Receiving Party learns, obtains or derives through observation or analyses, interpretations, compilations, studies or evaluations of Confidential Information shall also be considered Confidential Information of the Disclosing Party. Confidential Information may include information first disclosed to the Disclosing Party or its Affiliates by a third party, such as a contract counterparty, under an obligation of confidentiality. All information described above shall be Confidential Information of the Disclosing Party whether or not it is
- Patentable or eligible for copyright,
- Labeled or otherwise identified as confidential or proprietary,
- Disclosed verbally, visually, digitally, by written means or in the form of hardware, and regardless of the form or format it is in.
(b) Exceptions. Confidential Information shall not include any information that is:
(i) available or becomes available from public sources or that is or subsequently becomes in the public domain, through no breach of this Agreement or other fault of the Receiving Party or its Representatives (as defined below);
(ii) was obtained by the Receiving Party from a third party (other than from its Representatives) without, to the Receiving Party’s knowledge after reasonable inquiry, breach by such third party of an obligation of confidence with respect to the Confidential Information disclosed; or
(iii) has been or is developed by the Receiving Party independently of (e.g., without use of) any such Confidential Information disclosed by the Disclosing Party.
(c) No Commitment. This Agreement and the fact the Parties are engaged in discussion do not indicate the existence of a business relationship and do not bind the Parties to enter into a business relationship of any kind, or to proceed with any transaction (including, without limitation, the Proposed Investment). No business relationship will exist unless and until each Party signs a separate written agreement that defines the relationship. The execution and delivery of this Agreement does not create, imply or infer any obligation upon either Party to disclose its Confidential Information to the other Party.
(d) Term. This Agreement shall be effective as of the Effective Date and shall continue until the later of (i) two (2) years after the Effective Date or (ii) one (1) year following the date of the last disclosure of Confidential Information made by a Disclosing Party to a Receiving Party, unless the Parties otherwise agree in writing (“Term”).
- Obligations with Respect to Confidential Information.
(a) Access. The Receiving Party understands and agrees that it is being given access to the Confidential Information solely in connection with the Receiving Party’s review, evaluation and negotiation of the Proposed Investment and under the obligations of confidentiality set forth in this Agreement. Furthermore, the existence of any business negotiations, discussions, consultations, or agreements in progress between the Parties shall not be released or disclosed to any third party, including public media, without each Party’s prior written approval.
(b) Use and Disclosure. The Receiving Party may use the Confidential Information only for the review, evaluation and negotiation of the Proposed Investment and not for any other purpose. The Receiving Party shall not disclose any of the Confidential Information to any third party except the Receiving Party’s own Representatives (as defined below) who have a reasonable need to know of such Confidential Information in order to perform the evaluation of the Proposed Investment provided that such Representatives are informed of the confidential nature of the Confidential Information disclosed and agree to be bound by the terms of this Agreement. The Receiving Party agrees it shall be responsible and liable for any breach of this Agreement by its Representatives. The Receiving Party shall not reproduce or make copies of the Confidential Information for any purpose other than the review, evaluation and negotiation of the Proposed Investment and only with accurate reproduction of any confidentiality and proprietary legends and notices located in the originals. As used herein “Representatives” shall mean each Party’s managers, parent, subsidiary or Affiliates, and each of their officers, directors, employees, advisors, legal counsel and similar representatives.
(c) Standard of Care. Each Party shall use at least the same degree of care in protecting and safeguarding the Confidential Information of the other Party, which such Party uses to safeguard its own proprietary information, but in no event using less than a reasonable standard of care. Each Party shall promptly notify the other Party of the unauthorized use or disclosure or suspected or threatened unauthorized use or disclosure of its Confidential Information and take reasonable steps to mitigate such unauthorized disclosure and prevent further unauthorized disclosure.
(d) Ownership. Each of the Parties acknowledges for itself and its Representatives that the Confidential Information of the Disclosing Party is and shall remain (as between the Parties) the exclusive property and a valuable trade secret of the Disclosing Party, and is disclosed subject to the Disclosing Party’s ownership rights. Other than as may be explicitly set forth herein, nothing herein shall grant any ownership rights in, or license to use, the Confidential Information.
(e) Return of Information. Upon request of Disclosing Party, Receiving Party shall destroy or return all tangible and electronic copies of Confidential Information in its possession or control within thirty (30) days following such request, except to the extent that such Confidential Information is retained in order to comply with any law, rule, regulation, professional standard or internal record retention policy, in which case the Receiving Party shall take the appropriate measures to preserve its continuing confidentiality. The Receiving Party agrees that if requested by the Disclosing Party, an authorized officer will certify to the Disclosing Party in writing that all such information and materials have been delivered or destroyed in accordance with the terms of this Agreement. Notwithstanding the delivery or destruction of Confidential Information and related materials required by this Section 2(d), any and all duties or obligations existing under this Agreement will remain in full force and effect.
- Additional Obligations.
(a) Employee Non-Solicit. Each Party agrees that it will not, during the Term and for a period of one (1) year thereafter, directly or indirectly, induce or attempt to induce any employee of any other Party or its Affiliates to leave its employ, or in any way interfere with the relationship between any other Party or its Affiliates and their employees or hire any employee of any other Party with whom it had contact or who became known to such Party in connection with the Proposed Investment.
(b) Non-Circumvent. In further consideration of the agreements made herein, neither the Company nor any of its Representatives shall (i) approach, directly or indirectly any issuers, investors, borrowers, lenders or other persons or entities to which it was first introduced by GREEN HORIZON in connection with the Proposed Investment (collectively, “Contacts”), or any of such Contact’s owners, directors, officers, members, employees or agents, in connection with the Proposed Investment or a potential transaction similar in nature to the Proposed Investment without the prior written permission of GREEN HORIZON, (ii) circumvent GREEN HORIZON and approach directly or indirectly any Contacts (or any of such Contact’s owners, directors, officers, members, employees or agents) with the intention of establishing its own relationship with such Contact in connection with the Proposed Investment or a potential transaction similar in nature to the Proposed Investment without the prior written permission of GREEN HORIZON, or (iii) approach directly or indirectly with regard to any matters associated with the Proposed Investment or a potential transaction similar in nature to the Proposed Investment any agents (including attorneys, accountants, consultants, lenders, or similar advisers) of a Contact where such Contact is being presented by GREEN HORIZON in connection with the Proposed Investment. The Company agrees not to circumvent, avoid or bypass GREEN HORIZON, directly or indirectly, to avoid payment of any fees or commissions arising from the Proposed Investment or a potential transaction similar in nature to the Proposed Investment. Any discussions, negotiations or agreements with the Contacts or regarding the Proposed Investment or similar in nature to the Proposed Investment will be conducted exclusively through GREEN HORIZON.
- Required Disclosure. Notwithstanding anything in this Agreement to the contrary, in the event that Receiving Party or any of its Representatives are required to disclose any Confidential Information under any applicable law, rule, regulation or legal process, then Receiving Party and its Representatives may disclose such portion of the Confidential Information that they are advised by legal counsel is legally required to be disclosed without liability under this Agreement. In such event, Receiving Party shall provide Disclosing Party with prompt advance written notice of such disclosure, unless expressly prohibited by applicable law, rule, regulation or legal process, and provide Disclosing Party with a reasonable opportunity to seek a protective order or to otherwise limit the Confidential Information to be disclosed.
- No Warranties. Nothing in this Agreement shall be construed to impose on the Disclosing Party any liability or responsibility for errors or omissions in, or any business decisions made by the Receiving Party or its Representatives in reliance on, any Confidential Information disclosed under this Agreement. Nothing in this Agreement shall be construed as constituting a representation or warranty related to Confidential Information, including its completeness or accuracy. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” WITH ALL FAULTS. THE DISCLOSING PARTY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION. IN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION DISCLOSED BY IT.
- Remedies. Receiving Party acknowledges that breach or threatened breach of this Agreement, may give rise to irreparable harm and injury to Disclosing Party and its remedy at law may be inadequate. Accordingly, in the event of a breach or threatened breach of this Agreement, in addition to any other legal or equitable remedies that may be available, Disclosing Party shall be entitled to seek equitable relief, including specific performance and an immediate injunction to enforce any provision of this Agreement or restrain the Receiving Party from breaching this Agreement or using or disclosing, in whole or in part, directly or indirectly, any Confidential Information in contravention of this Agreement, without having to prove that actual damages or monetary damages would not be an adequate remedy, and without having to post a bond.
- Notices. Any notice by either Party under this Agreement shall be sufficiently given if in writing and mailed by certified mail, return receipt requested, addressed to the Party to be notified at the address set forth above or at such other address as the Party to be notified may from time to time designate by giving notice thereof in writing. Notice shall be complete upon such mailing except in the case of a notice to change an address in which case notice shall be complete when the addressee receives notice.
- Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PRINCIPLES. THE PARTIES AGREE THAT ANY RULE OF CONSTRUCTION TO THE EFFECT THAT AMBIGUITIES ARE TO BE RESOLVED IN FAVOR OF EITHER PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION OF THIS AGREEMENT AND IS HEREBY WAIVED.
- Jurisdiction; Waiver of Jury Trial. Each Party agrees to submit for itself and its property in any legal action or proceeding relating to this Agreement, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the state or federal courts of the State of New York, the courts of the United States for the District of New Hampshire and appellate courts from any thereof. Each Party agrees that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
(a) Amendment. No amendment or modification of this Agreement shall be valid unless in writing and signed by all Parties.
(b) Severability. If a court of competent jurisdiction or arbitral panel finds any term or provision of this Agreement to be invalid, illegal or otherwise unenforceable, such term or provision will be deemed modified to the extent necessary in the court’s or panel’s option to render such term or provision enforceable, while preserving to the fullest extent permissible, the intent and agreements of the Parties as provided in this Agreement.
(c) Waiver. A waiver of any provision of this Agreement is not effective unless it is in writing and signed by the Party against which the waiver is sought to be enforced. The delay or failure by either Party to exercise or enforce any of its rights under this Agreement will not constitute or be deemed a waiver of that Party’s right to thereafter enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right.
(d) Assignment. Neither Party may assign its rights or delegate its duties or obligations under this Agreement without prior written consent of the other Party. This Agreement shall inure to the benefit of and be enforceable by each of the Parties and their successors and permitted assigns.
(e) Entire Agreement. This Agreement contains the entire understanding between the Parties hereto with respect to the subject matter hereof and supersedes all prior oral or written communications, negotiations, understandings, or agreements.
(f) Counterparts. This Agreement may be executed in one or more separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together executed by all, of the Parties. Copies of documents or pages bearing original signatures and executed documents or signature pages delivered by a Party by facsimile, or e-mail transmission of an Adobe® file format document (also known as a PDF file), shall, in each such instance, be deemed to be, and shall constitute and be treated as, an original executed document or counterpart, as applicable.