Request Due Diligence Access
Please fill out and submit the form below to request access to due diligence for this property. If you agree with the terms of the NDA, please check the "Approve NDA" box and submit. By submitting this form, you agree to the Terms and Conditions of the Confidentiality Agreement.
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This Confidentiality Agreement (this “Agreement”) is entered into this [___] day of [________], [____] by and between Union Corrugating Company Holdings, Inc. (the “Company”), and [______________] (“Recipient”). Each of the foregoing parties is referred to herein as a “Party” and together as the “Parties”.
A. In order to allow Recipient to evaluate a possible negotiated transaction (the “Proposed Transaction”) with the Company or one of its affiliates (collectively with the Company, referred to herein as a “Disclosing Party”), the Disclosing Party is prepared to deliver to Recipient certain information about the Disclosing Party.
B. As a condition to providing such information to Recipient, the Company is requiring that Recipient agree to the terms set forth herein.
The Parties hereby agree as follows:
1. Evaluation Material; Definitions.
1.1 Evaluation Material. All information, including without limitation information about the Disclosing Party’s assets, liabilities, employees, financial condition, businesses, customers, suppliers, operations, processes and intellectual property, historical, current and prospective, furnished by the Disclosing Party or any of its Representatives (as defined below), whether furnished before or after the date hereof, whether or not designated as being confidential, and regardless of the manner or form in which the information is furnished (including oral, written and electronic communications), is referred to in this Agreement as “Evaluation Material”. The term “Evaluation Material” also includes all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by Recipient or any of its Representatives which contain, reflect or are based upon, in whole or in part, any information that the Disclosing Party or any of its Representatives furnish to Recipient or its Representatives. Notwithstanding the foregoing, the term “Evaluation Material” does not include information which Recipient demonstrates (a) is or becomes generally available to the public other than as a result of a disclosure by Recipient or any of its Representatives in violation of this Agreement or any other contractual, fiduciary or other legal obligation of confidentiality; provided, however, that the source of such information was not bound by a confidentiality agreement or any contractual, fiduciary or other legal obligation of confidentiality with respect to such information, or (b) is or becomes available to Recipient on a non-confidential basis from a person (other than the Disclosing Party or any of its Representatives) who is not prohibited from disclosing such information to Recipient by a contractual, fiduciary or other legal obligation of confidentiality to the Disclosing Party or any of its Representatives. The disclosure of any Evaluation Material by the Disclosing Party does not constitute an actual or implied license of any intellectual property of the Disclosing Party.
1.2 Other Definitions. As used in this Agreement, the term “Representative” means, as to any person, such person’s affiliates and its and their controlling persons, directors, officers, employees, agents, advisors (including, without limitation, financial advisors, legal counsel, and accountants). As used in this Agreement, the term “affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As used in this Agreement, the term “person” shall be broadly interpreted to include any individual, partnership, corporation, limited liability company, association, firm, joint stock company, estate, trust, joint venture, unincorporated organization, other business entity, or Government Authority. As used in this Agreement, “Law” means any foreign or domestic federal, state or local law, statute, code, ordinance, regulation, rule, order, consent agreement, constitution or treaty of any Government Authority, including common law. “Government Authority” means any foreign or domestic federal, state or local government or quasi-governmental authority or regulatory authority or any commission, board, bureau, administrative body, department, agency, subdivision, court or other tribunal of any of the foregoing.
2. Treatment of Evaluation Material.
2.1 Obligation of Confidentiality. Recipient agrees (a) except to the extent otherwise required by Law, to keep confidential and not to disclose or reveal any Evaluation Material to any person other than those of its Representatives (i) who are actively and directly participating in Recipient’s evaluation of the Proposed Transaction or who otherwise need to know the Evaluation Material for the purpose of evaluating the Proposed Transaction and (ii) whom Recipient will cause to observe the terms of this Agreement, (b) not to use Evaluation Material for any purpose other than Recipient’s evaluation of the Proposed Transaction or the consummation of the Proposed Transaction in a manner that the Company has approved and not in any way detrimental to the Disclosing Party or any of its stockholders or affiliates and (c) except as required by Law, not to disclose to any person (other than those of Recipient’s Representatives who are actively and directly participating in Recipient’s evaluation of the Proposed Transaction or who otherwise need to know the Evaluation Material for the purpose of evaluating the Proposed Transaction and whom Recipient will cause to observe the terms of this Agreement) any information about the Proposed Transaction, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, the existence of this Agreement, or the fact that Evaluation Material has been made available to Recipient or any of its Representatives.
2.2 Required Disclosure. In the event that Recipient or any of its Representatives is required by Law to disclose any Evaluation Material or any other information concerning the Disclosing Party or the Proposed Transaction, Recipient agrees that it will provide the Company with advance written notice of such request or requirement in order to enable the Company to seek an appropriate protective order or other remedy (and if the Company seeks such an order, Recipient will provide such cooperation as the Company shall request), to consult with Recipient with respect to the Disclosing Party taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Agreement. Regardless of whether such protective order or other remedy is obtained, or whether the Company waives compliance, in whole or in part, with the terms of this Agreement, Recipient or its Representative (as applicable) will disclose only that portion of the Evaluation Material that Recipient is advised in writing by counsel is legally required to be disclosed, will notify the Disclosing Party of the Evaluation Material so disclosed and will use its best efforts to ensure that all Evaluation Material so disclosed will be accorded confidential treatment.
2.3 Responsibility for Breach. Recipient acknowledges that it shall be responsible for any breach of the terms of this Agreement by Recipient or any of its Representatives and Recipient agrees, at its sole expense, to take all necessary measures (including but not limited to legal proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.
3. Other Agreements.
3.1 No Representations or Warranties. The Disclosing Party reserves the right, in its sole discretion, to determine what information it will provide or withhold, as well as the times at which it will make such information available. Recipient acknowledges that none of the Disclosing Party or any of its Representatives and none of the respective officers, directors, employees, agents or controlling persons of any of its Representatives makes any express or implied representation or warranty as to the completeness and accuracy of any Evaluation Material, and Recipient agrees that none of such persons shall have any liability to Recipient or any of its Representatives relating to or arising from Recipient’s or any of its Representative’s use of any Evaluation Material or for any errors therein or omissions therefrom. Recipient also agrees that it is not entitled to rely on the completeness or accuracy of any Evaluation Material and that Recipient shall be entitled to rely solely on such representations and warranties as may be made to it in any definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of such agreement.
3.2 Communications. It is further understood and agreed that the Disclosing Party’s financial advisor, STREAM Capital Partners (the “Financial Advisor”), will arrange for appropriate contacts for due diligence purposes with such prospective buyers as the Financial Advisor and the Disclosing Party in their sole discretion shall determine. It is also understood and agreed that all (a) communications regarding the Proposed Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings and (d) discussions or questions regarding procedures, will be submitted or directed exclusively to the Financial Advisor, and that none of Recipient or any of its Representatives will initiate or cause to be initiated any communication with any Representative of the Disclosing Party concerning the Evaluation Material or the Proposed Transaction except with the express written permission of the Company or the Financial Advisor.
3.3 Definitive Agreement. Recipient understands and agrees that no contract or agreement providing for any transaction involving the Proposed Transaction shall be deemed to exist between Recipient and the Company unless and until a definitive agreement regarding the Proposed Transaction has been executed and delivered by such parties, and Recipient hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with any transaction involving the Company unless and until Recipient and the Company shall have entered into such a definitive agreement. Recipient further understands and agrees that neither Party hereto, nor any of its Representatives, is under any legal obligation or has any liability to the other Party of any nature whatsoever with respect to the Proposed Transaction by virtue of this Agreement or otherwise (other than with respect to the confidentiality and other matters set forth herein). Recipient also acknowledges and agrees that (a) the Company and its Representatives may conduct the process that may or may not result in the Proposed Transaction in such manner as the Company, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to Recipient), (b) the Company may terminate such process at any time, (c) the Company reserves the right to change, in its sole discretion, at any time and without notice to Recipient, the procedures relating to its and Recipient’s consideration of the Proposed Transaction (including, without limitation, terminating all further discussions with Recipient and requesting that Recipient return or destroy the Evaluation Material as described below) and (d) Recipient shall not have any claims whatsoever against the Company, any other Disclosing Party, its or their Representatives or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any transaction involving the Disclosing Party (other than those as against the parties to a definitive agreement with Recipient in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Recipient, against any third party with whom a transaction is entered into.
4. Return of Evaluation Material. If Recipient determines that it does not wish to proceed with the Proposed Transaction, Recipient will promptly inform the Company in writing of that decision. Recipient will, promptly at the Company’s request at any time, deliver to the Company all Evaluation Material (including all copies or reproductions thereof in whatever form or medium, including electronic copies) furnished by a Disclosing Party or any of its Representatives and, at the Company’s election, either return or destroy (provided, however, that any such return or destruction shall be certified in writing to the Company by a duly authorized Representative of Recipient) all copies or reproductions (in whatever form or medium, including electronic copies) of all other Evaluation Material prepared by Recipient or any Representative of Recipient. Any oral Evaluation Material will continue to be subject to the terms of this Agreement. Notwithstanding the return or destruction of any Evaluation Material, Recipient and its Representatives will continue to be bound by the confidentiality and other obligations hereunder.
5 Visitation and Inspection. During the course of activity pursuant to this Agreement, it may be necessary for Recipient and/or its Representatives to visit or inspect properties and facilities of a Disclosing Party. All such visitation and inspection shall be at Recipient’s sole risk, cost, and expense. Except for incidents related to a Disclosing Party’s willful and malicious conduct, Recipient shall indemnify, defend and hold the Disclosing Party harmless from any and all damage, loss, cost or liability (including legal fees and the cost of enforcing this indemnity) arising out of or resulting from any accident or injury involving Recipient or its Representatives while on the property of a Disclosing Party.
6.1 Governing Law. This Agreement shall be governed by and construed in accordance with the domestic Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.
6.2 Jurisdiction. Each of the Parties irrevocably submits to the exclusive jurisdiction of any State or Federal court sitting in Chicago, Illinois (the “Courts”), for the purposes of any suit, action or other proceeding arising out of or relating to this Agreement and the transactions contemplated hereby, and to the non-exclusive jurisdiction of the Courts for the enforcement of any judgment obtained thereunder. Each of the Parties further agrees that service of any process, summons, notice or document by U.S. registered mail to such Party’s respective address set forth above shall be effective service of process for any action, suit or proceeding in the Courts with respect to any matters to which it has submitted to jurisdiction in this Section 6.2. Each of the Parties irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in the Courts, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such Court that any such action, suit or proceeding brought in any such Court has been brought in an inconvenient forum.
6.3 Injunctive Relief. The Parties agree that irreparable damage will occur in the event that the provisions of this Agreement are not performed in accordance with their specific terms. Accordingly, it is hereby agreed that the Company shall be entitled to an injunction or injunctions to enforce specifically the terms and provisions hereof in any Court, this being in addition to any other remedy to which it is entitled at law or in equity. Recipient further agrees to waive, and to use its best efforts to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this Agreement, if a Court determines in a final, non-appealable order that this Agreement has been breached by Recipient or any of its Representatives, then Recipient will reimburse the Company for its costs and expenses (including legal fees and expenses) incurred in connection with all such litigation.
6.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. Recipient may not assign, delegate or otherwise transfer either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the Company. The Company may (a) assign any or all of its rights and interests hereunder to one or more of its affiliates and designate one or more of its affiliates to perform its obligations hereunder (in any or all of which cases the Company nonetheless shall remain responsible for the performance of all of its obligations hereunder), or (b) assign its rights under this Agreement to any person that acquires the Company, any of the Disclosing Parties (or its or their affiliates) or any of its or their assets; provided, that the acquirer shall agree in writing to be bound by the terms of this Agreement as if named a “Party” hereto.
6.5 Severability. Any term or provision of this Agreement that is held invalid or unenforceable by a Court in any situation shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.
6.6 Entire Agreement. This Agreement constitutes the entire agreement among the Parties and supersedes any prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof.
6.7 Amendment. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the Company and Recipient. No waiver by any Party of any provision of this Agreement or any default or breach of covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party against whom the waiver is to be effective nor shall such waiver be deemed to extend to any prior or subsequent default or breach of covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. It is further understood and agreed that no failure or delay by the Company 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 right, power or privilege hereunder.
6.8 Counterparts. This Agreement may be executed in any number of counterparts (including by means of facsimile and electronically transmitted portable document format (pdf) signature pages), each of which shall be an original but all of which together shall constitute one and the same instrument.
6.9 Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement (other than communications covered by Section 3.2) shall be in writing and shall be deemed to have been given when personally delivered, one (1) day after deposit with Federal Express or similar overnight courier service, upon transmission by facsimile if a customary confirmation of transmission is received during normal business hours and, if not, the next business day after transmission or three (3) days after being mailed by first class mail, return receipt requested to the address listed on the signature page hereto.
7.0 Term. This Agreement and the obligations of the Parties hereunder shall expire no later than two (2) years from the date hereof.
[Signature page follows]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives on the date first written above.
UNION CORRUGATING COMPANY HOLDINGS, INC
Address for Notices:
1603 Orrington Ave. Suite 700
Evanston, IL 60201
Address for Notices:
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