Sample Confidentiality Agreement
This Confidentiality Agreement (the "Agreement") is made as of this___day of_______________,
20___(the "Effective Date"), by and between Mrs. Fields' Original Cookies, Inc., and/or the subsidiary of
Mrs. Fields Famous Brands listed on the signature page below (collectively, "Company"), and _____________________________(hereinafter referred to as "You," "you," "your," "yourself," etc.).
A. You are an individual who is a franchisee or prospective franchisee of Company, or are an individual who is an owner, officer, director, member, employee, agent and/or independent contractor of an entity that is a franchisee or a prospective franchisee of Company (any such entity referred to herein as "Guarantor").
B. As a result of being a franchisee or prospective franchisee of Company, or an owner, officer, director, member, employee, agent and/or independent contractor of Guarantor, Company or its affiliates may disclose certain Information (as defined below) to you, which is either non-public, confidential or proprietary in nature.
C. Disclosure of the Information may require that you travel to and/or enter onto the property of Company and/or its affiliates, or their repsective agent(s) or designee(s).
D. It is in the interest Company, you and any Guarantor that the Information be disclosed on a confidential basis and otherwise pursuant to the terms set forth below.
In light of the above recitals and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you, Company and any Guarantor agree as follows:
1. Information which is either non-public, confidential or proprietary in nature delivered, in whole or in part, before or after the date hereof in any form, including, without limitation, training materials, product information, operations manuals, supplier and vendor lists, customer lists, videotapes, films, drawings, diagrams and computer programs, together with analyses, compilations, studies, or other documents prepared by Company, you or any Guarantor, or any of their respective owners, officers, directors, members, employees, agents and/or advisers, which contain or otherwise reflect such information, is hereinafter referred to as "Information."
2. If Company and you, or Company and any Guarantor, have entered into or shall hereafter determine to enter into discussions or negotiations concerning a possible transaction involving Company and you, or Company and any Guarantor, or an affiliate of Company or any Guarantor (a 'Transaction"), the existence and nature of such discussions and negotiations will also constitute Information for purposes of this Agreement. In the case of a possible Transaction, each party hereto agrees to transmit Information only to the owners, officers, directors, members, employees, agents and/or advisers of Company and any
Guarantor, who need to know the Information for the purpose of evaluating the Transaction and who are informed of the confidential nature of the Information.
3. All Information will be kept secret and confidential and will not be communicated, divulged or disclosed to any other person or entity by the party receiving the Information (the "Receiving Party") in any manner whatsoever, in whole or in part, without the prior written consent of the party providing the Information, (the "Disclosing Party"), and will not be used by the Receiving Party other than in connection with evaluating or implementing a possible Transaction, or in the operation of a retail store or outlet franchised by Company and operated by you or any Guarantor pursuant to a franchise agreement with Company (a "Franchised Store"). The Receiving Party will be responsible for any breach of any provision of this Agreement.
4. All Information, and all copies thereof, including, without limitation, training materials, product information, operations manuals, analyses, compilations, studies or other documents prepared by the Receiving Party, and any of its owners, officers, directors, members, employees, agents or advisers, will be returned to the Disclosing Party without retaining any copies thereof immediately upon written request of the Disclosing Party.
5. You will at all times treat the Information you receive from Company and its affiliates as the sole and absolute property of Company and its affiliates.
6. If, during the course of research and due diligence for assessing any possible Transaction, or in connection with any training conducted by Company, you shall have occasion to visit Company or any of its corporate offices or designated training facilities (each a "Visit"), then any information and documentation obtained during such Visits shall be included in the definition of Information. You shall bear any and all costs of Visits, including, without limitation, your airfare, lodging, living expenses, wages and benefits, and costs of copying or obtaining Information. Company shall have no obligation to reimburse you for any costs arising from Visits, whether or not Company and you, or Company and Guarantor, eventually complete a Transaction. You assume all risks associated with your Visit and/or your participation in any training conducted by Company, and you agree to defend and indemnify Company and hold Company harmless from and against any and all claims, actions, damages, liability and expenses arising from, out of or relating to your Visit and/or your participation in training. In addition, except to the extent limited or prohibited by applicable law, you agree to release and forever discharge Company and its affiliates, and all of their respective owners, officers, directors, members, employees, agents, representatives, attorneys, insurers, successors, assigns, heirs and personal representatives, from any and all claims, debts, covenants, liabilities, suits, judgments, damages, actions and causes of action, whether known or unknown, direct or indirect, which you ever had, have or ever may have or claim to have, arising out of or relating to any of your Visits or your participation in training.
7. Nothing stated herein shall preclude the Receiving Party, and any of its owners, officers, directors, members, employees, agents or advisers, from disclosing Information that it is legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose, provided that the procedures referred to in this paragraph 7 are satisfied. In the event of a premature disclosure or any persons to whom Information pursuant to this Agreement is made available becomes legally compelled to disclose Information, such party will provide the Disclosing Party with prompt notice thereof so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions of this Agreement, any person legally compelled to disclose any Information will furnish only that portion of such Information that such person is legally required to disclose and such party shall use its reasonable best efforts to ensure that the information so disclosed is accorded
confidential treatment. In all events the parties agree to cooperate in determining what steps shall be taken.
8. The term "Information" does not include Information that (a) becomes generally available to the public other than as a result of disclosure by the Receiving Party or anyone to whom the Receiving Party transmits Information, (b) was available to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party, or (c) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party who is not bound by a confidentiality agreement or other obligation of secrecy with respect to such Information.
9. For a period of two (2) years following the date of this Agreement, the parties hereto will not, as a result of knowledge obtained from the Information, and will likewise direct any of their owners, officers, directors, members, employees, agents, and advisors not to, use the Information to solicit or recruit employees of the other parties hereto for employment or induce agents or employees of the other parties hereto to terminate their employment. Nothing in this paragraph 9 shall prevent any of the parties hereto from employing any employee of the other parties hereto if such employee contacts the one of the other parties on his or her own initiative without any direct or indirect solicitation by or encouragement from the other party (other than general solicitations in industry journals, national newspaper or similar solicitations or publications).
10. Neither the parties hereto nor their respective advisers makes any representation or warranty as to the accuracy or completeness of Information or of any other written or oral communication transmitted or made available pursuant to this Agreement, and each such party expressly disclaims any and all liability based on such Information or communications or on omissions therefrom. Only those representations or warranties that are made to a party in a Franchise Agreement executed between Company and you, or Company or any Guarantor, or in a definitive Transaction Agreement (as hereinafter defined) when, as and if it is executed, shall have any legal effect.
11. This paragraph 11 applies if no Franchise Agreement nor definitive Transaction Agreement has been executed between Company and you, or Company and any Guarantor. The parties understand and agree that no contract or agreement shall be deemed to exist between the parties unless and until a definitive Transaction Agreement has been executed. Until execution of such a definitive Transaction Agreement, other than the obligations set forth in this Agreement, the parties have no legal obligation of any kind with respect to any possible Transaction. Each party may conduct negotiations in any manner as it reasonably determines, including entering into a Transaction Agreement with another party or terminating negotiations with the other parties hereto. For purposes of this Agreement, a definitive Transaction Agreement is not a letter of interest, term sheet or any other preliminary agreement or understanding but only a final definitive agreement. Except as expressly set forth in this Agreement, none of the parties hereto are committed in any way with respect to the matters discussed by them, unless and until a definitive Transaction Agreement with respect thereto is executed, nor shall this Agreement be construed as an obligation on the part of the parties hereto to negotiate such a definitive Transaction Agreement, or be liable for any expenses of the other parties.
12. The obligations in this Agreement shall be binding upon the parties as well as any successor assigns.
13. It is further understood and agreed that no failure or delay by any party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. The provisions of this Agreement may be modified or waived only by a separate writing, expressly modifying or waiving such provision, and executed by all parties to this Agreement.
14. Each party recognizes that irreparable injury may result to a Disclosing Party and its business and property if a Receiving Party breaches any provision of this Agreement and that money damages would not be a sufficient remedy for any such breach. Each party therefore agrees that if any act in violation of any provision hereof occurs, the Disclosing Party shall be entitled, in addition to such other remedies, damages and relief as may be available under applicable law, to an injunction prohibiting the Receiving Party from engaging in any such act or specifically enforcing this Agreement, as the case may be.
15. This Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior written and oral communications and agreements, if any relating to the subject matter hereof.
16. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to the principles of conflict of laws thereof. This Agreement may be executed in counterparts, each of which when so executed and delivered shall be an original, but such counterparts shall constitute one and the same instrument.
17. If you are an owner, officer, director, member, employee, agent and/or independent contractor of a Guarantor, Guarantor must sign the Undertaking and Guarantee; Release attached to this Agreement.
The undersigned, by executing this Agreement, agree to be bound by the provisions of this Agreement as of the date first above written.
[MFFB SUBSIDIARY] YOU
By _____________________________ By
Its ______________________________ Its
Your Contact information: (Please Print)
Relationship to Guarantor:_________________________________________________
City:_________________________________ State:_________________ Zip:
Best time to contact:__________________________
UNDERTAKING AND GUARANTEE; RELEASE
Guarantor acknowledges and agrees that you are an owner, officer, director, member, employee, agent and/or independent contractor of Guarantor, and are signing the foregoing Confidentiality Agreement (the "Agreement") as a benefit to and at the request of Guarantor. Accordingly, in consideration of the. execution of the Agreement by you, and for other good and valuable consideration, Guarantor for itself, its heirs, legal representatives, successors and assigns hereby agrees to sign this Undertaking and Guarantee; Release (the "Guarantee") and guarantee the full and timely performance by you of each of your obligations arising under the Agreement, including, without limitation, your obligations to defend, indemnify and hold harmless Company and its affiliates in accordance with paragraph 6.
In addition, the Guarantor hereby agrees to be personally bound by each and every condition and term contained in the Agreement as though the Guarantor had executed an agreement containing the identical terms and conditions of the Agreement. The Guarantor agrees to pay all attorneys' fees and costs and other expenses incurred in connection with the enforcement of the Guarantee or with any negotiations related to such enforcement.
Further, except to the extent limited or prohibited by applicable law, Guarantor agrees to release and forever discharge Company and its affiliates, and all of their respective owners, officers, directors, members, employees, agents, representatives, attorneys, insurers, successors, assigns, heirs and personal representatives, from any and all claims, debts, covenants, liabilities, suits, judgments, damages, actions and causes of action, whether known or unknown, direct or indirect, which Guarantor ever had, has or ever may have or claim to have, arising out of or relating to any of your Visits or your participation in training.
The Guarantor agrees that each and every provision, covenant, and condition of the Guarantee shall inure to the benefit of Company's successors and assigns.
GP: 1923747 v2