CONFIDENTIALITY and NON-DISCLOSURE AGREEMENT (“CNDA”)This Confidentiality and Non-Disclosure Agreement (the “CNDA”) is entered into as of the date noted below by electronic Acknowledgment and Acceptance (the “CNDA”), by and between the Receiving Party (defined in the electronic Acknowledgment and Acceptance) and Investment Management Advisors, LLC (the “Disclosing Party”) as a Representative of Whirlpool Corporation – BTC.
1. Purpose. This Agreement is made in order for the Disclosing Party to disclose to the Receiving Party during the term of this Agreement, such technical and business information as the Disclosing Party may elect to disclose, so that the Receiving Party may review and use the same solely for the purpose of considering the merits of a potential business arrangement with the Disclosing Party (the “Business Opportunity”), under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all technical or business information, including without limitation third party information, furnished or disclosed, in whatever form or medium (including without limitation tangible, written, intangible, visual and oral), by the Disclosing Party to the Receiving Party. All Confidential Information will remain the property of the Disclosing Party, and no license or other rights in any of the Confidential Information is granted by virtue of this Agreement.
3. Covered Parties. For purposes of this Agreement, the definitions of the “Disclosing Party” and the “Receiving Party” shall be deemed to include any parent company, subsidiary, affiliate of, or entity controlled by, controlling or under common control of the Disclosing Party or the Receiving Party, as the case may be, and their Representatives. All Representatives (as hereinafter defined) shall be deemed to be solely the agents of the respective party with which they have business relationships. Each party shall be solely responsible for all actions and obligations of its Representatives as if they were the actions and obligations of that party; and the obligations of each of the parties under this Agreement shall apply equally to any and all of the Representatives of the respective parties. For purposes of this Agreement, the term “Representatives” means all of the Disclosing Party’s or the Receiving Party’s respective directors, officers, employees, agents, subcontractors, representatives or advisors, including, without limitation, attorneys, accountants, consultants, bankers, investment bankers, other potential financing sources and financial advisors.
4. Obligations. In handling the Confidential Information, the Receiving Party agrees: (a) to use the Confidential Information solely for the purpose of evaluating the Business Opportunity; (b) to use reasonable efforts to protect the confidentiality of the Confidential Information; (c) not to make disclosure of any of the Confidential Information to anyone, except those Representatives of the Receiving Party to whom disclosure is necessary for the purposes stated above; and (d) to appropriately notify such Representatives that the disclosure is made in confidence and to require them to keep the same in confidence in accordance with the terms and conditions of this Agreement.
5. Information Without Obligations. The obligations and restrictions imposed by this Agreement will not apply to any information that: (a) the Receiving Party can demonstrate is already known to the Receiving Party prior to the disclosure by the Disclosing Party; (b) is independently developed by the Receiving Party without reference to the Disclosing Party’s information; (c) is or becomes publicly available through no fault of the Receiving Party; or (d) is obtained by the Receiving Party from a third person without breach by such third person of an obligation of confidence to the Disclosing Party with respect to the information disclosed. For purposes of this Agreement: (i) information that relates to specific facts, specific data or ideas shall not be deemed either publicly available or already known to the Receiving Party merely because such information may be contained within broad or generic disclosures; and (ii) information that relates to specific combinations of facts or data shall not be deemed either publicly available or already known to the Receiving Party merely because the individual facts or data are found in separate disclosures.
The obligations and restrictions set forth herein will not apply to the extent that any Confidential Information of the Disclosing Party is required to be disclosed pursuant to the lawful order of a government agency or court or disclosure is required by operation of law, provided that the Receiving Party first notifies the Disclosing Party in writing of the required disclosure and allows the Disclosing Party reasonable time to contest such disclosure, seek an appropriate protective order or waive compliance by the Receiving Party with this Agreement.
6. Term. This Agreement and the exchange of information hereunder will become effective as of the date set forth above and will automatically expire two (2) years after such effective date unless the parties have entered into a definitive written agreement on the Business Opportunity, in which case this Agreement will be superseded by the confidentiality provisions in such definitive written agreement from and after the execution thereof.
7. No Other Obligations. Except for the obligations expressly set forth herein, no obligation of any kind is assumed or implied against either party by virtue of the party’s meetings or conversations with respect to the Business Opportunity or with respect to whatever Confidential Information is exchanged. Each party further acknowledges that this Agreement and any meetings and communications of the parties relating to the same subject matter, including the exchange of Confidential Information, will not: (a) constitute an offer, request or contract with the other to engage in any research, development or other work; (b) constitute an offer, request or contract involving a buyer‑seller relationship, venture, teaming or partnership relationship between the parties; or (c) impair or restrict either party’s right to make, procure or market any products or services, now or in the future, that may be similar to or competitive with those offered by the Disclosing Party, or that are the subject matter of this Agreement, so long as the Receiving Party’s obligations of confidentiality under this Agreement are not breached. Each party will be responsible for all of its own costs and expenses relating to, and each party assumes any and all risks associated with any delays and lost opportunities resulting from, its communications, discussions and meetings with the other party. Except for damages of any kind that may arise out of or in connection with any breach of this Agreement, neither party will be liable to the other party for damages of any kind whatsoever if negotiations do not ensue or reach an impasse or if a business arrangement is not consummated between the parties.
8. No Licenses. Nothing herein will be construed as granting to either party any right or license under any copyrights, inventions, trade secrets, patents, ideas or concepts now or hereafter owned or controlled by the other party. The parties also agree that neither party will use any trade name, service mark, or trademark of the other or refer to the other party in any promotional activity or material without first obtaining the prior written consent of the other party.
9. Confidentiality of Agreement. Without the prior consent of the other party, neither party will disclose to any third person the existence or purpose of this Agreement, the terms or conditions hereof, or the fact that discussions are taking place regarding the Business Opportunity and that Confidential Information is being shared, except as may be required by law, regulation or court or agency order or demand, and then only after prompt prior written notification to the other party of such required disclosure.
10. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this Agreement. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. Electronic signatures will have the same legal effect as original signatures.
11. Notices. Any notice to be given hereunder by either party to the other will be in writing and will be deemed given upon delivery, if sent by facsimile or by overnight courier, or three (3) days after such notice is deposited if sent by certified U.S. mail, return receipt requested. Notices will be addressed to the parties at their respective addresses as provided.
12. General. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without reference to conflict of laws principles. This Agreement may not be amended, except by a writing signed by both parties hereto. Each party acknowledges that its breach of the Agreement will cause irreparable damage and hereby agrees that the other party shall be entitled to seek specific performance and injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to sign this Agreement as of the date first stated above.
INVESTMENT MANAGEMENT ADVISORS, LLC
By: Robert D. Oldfield, III
Robert D. Oldfield, III
Date: March 15, 2016
600 Academy Drive, Suite 140
Northbrook, Illinois 60062
dd (847) 670-5803