Non-Disclosure Agreement (NDA) Template

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INSTRUCTIONS: THIS IS A TEMPLATE NON-DISCLOSURE AGREEMENT (NDA) TO BE USED FOR PIPELINE COMPANIES. IF THE PIPELINE COMPANY REQUESTS ANY REVISIONS TO THIS FORM, PLEASE INFORM YOUR COUNTRY’S LOCAL LEGAL COUNSEL – THEIR APPROVAL IS REQUIRED BEFORE EXECUTION. ALL INTERNAL NOTES (HIGHLIGHTED IN YELLOW) SHOULD BE REMOVED / FILLED IN PRIOR TO SENDING THIS DOCUMENT OUTSIDE OF [INSERT INV./FUND MANAGER NAME]. IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT THE FIRM’S GENERAL COUNSEL]

MUTUAL NON-DISCLOSURE AGREEMENT

AND

NON-CIRCUMVENTION

This Mutual Non-Disclosure and Non-Circumvention Agreement (this “Agreement”) is made as of _________________, 20__, by and between [INSERT INV./FUND MANAGER NAME], a [STATE/COUNTRY LEGAL DESIGNATION (e.g. limited liability company)], whose address is [ADDRESS], and ______________________, a [insert type and jurisdiction of entity] (“Company”). [INSERT INV./FUND MANAGER NAME] and Company are individually referred to herein as a “Party” and, collectively, as the “Parties”.

[INSERT INV./FUND MANAGER NAME] is in discussions with the Company concerning a potential investment in the Company by [INSERT INV./FUND MANAGER NAME] and/or investment vehicles managed by [INSERT INV./FUND MANAGER NAME] and the provision of growth services to the Company by [INSERT INV./FUND MANAGER NAME] in connection therewith (the “Business Purpose”). To pursue the Business Purpose, the Parties recognize there is a need to disclose to one another certain confidential information to be used only for the Business Purpose and to protect such confidential information from unauthorized use and disclosure.

In consideration of the other Party's disclosure of such information, each Party agrees as follows: CONFIDENTIALITY 1.

This Agreement will apply to all Confidential Information (defined below) disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) concerning the Business Purpose and other information which the Disclosing Party identifies in writing as confidential before or within thirty (30) days after disclosure to the Receiving Party.

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As used herein, “Confidential Information” of a Party means all information, whether in written, oral, electronic or other form, furnished or disclosed by the Disclosing Party or its Representatives to the Receiving Party or its Representatives, and specifically includes, but is not limited to, all business and financial information; marketing and strategic plans; analysis, reports, technologies, processes and operations; compilations, forecasts, studies, lists, summaries, notes, and data; legal and regulatory permitting, registration, formation and structuring; strategic analysis and plans relative to international, national, state and/or local law; all terms and conditions included in any and all drafts of any agreement or term sheet with respect to the Business Purpose; and all other documents, information and materials concerning the Disclosing Party and its Affiliates. “Representative” of a Party means any Affiliate of a Party or any director, officer, employee, agent, advisor or consultant of such Party or of its Affiliates. “Affiliate” of a Party means any corporation, partnership, trust, company or other entity controlling, controlled by, or under common control with such Party.

3.

For the sake of clarity, [INSERT INV./FUND MANAGER NAME]’s “Confidential Information” shall also include contact information in its possession for individuals and institutions who have expressed interest in or who have made investments in either the Company or other businesses which seek investment from [INSERT INV./FUND MANAGER NAME] or from other individuals and entities with assistance from [INSERT INV./FUND MANAGER NAME]. These investors and prospective investors collectively are referred to as [INSERT INV./FUND MANAGER NAME]’s “Investor Pipeline” and exclude individuals and institutions that the Company has introduced to [INSERT INV./FUND MANAGER NAME].

Confidential contact information for those in [INSERT INV./FUND MANAGER NAME]’s Investor Pipeline includes names, addresses, telephone, telex, and facsimile numbers, and/or other pertinent information disclosed or revealed to either Party.

4.

Except as otherwise provided herein, the Receiving Party agrees (i) to hold the Disclosing Party's Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, and (iii) not to use any Confidential Information for any purpose except for the Business Purpose. The Receiving Party shall immediately notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information of the Disclosing Party.

5.

Only to the extent necessary to carry out the Business Purpose, the Receiving Party may disclose the Disclosing Party's Confidential Information to its responsible Representatives

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with a bona fide need to know who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein. Further, the Parties agree that [INSERT INV./FUND MANAGER NAME] may disclose the Company’s Confidential Information (i) to any individuals or institutions seeking opportunities to invest in the Company, (ii) to those of [INSERT INV./FUND MANAGER NAME]’s officers, directors, agents, employees, accountants, auditors, and consultants and government regulators who need access to the Confidential Information in order to assist [INSERT INV./FUND MANAGER NAME] in facilitating investments in the Company, providing management or other consulting to the Company, providing other services to the Company which the Parties from time to time may agree upon, and/or reviewing the practices of [INSERT INV./FUND MANAGER NAME], including, but not limited to, its credit practices or procedures, and (iii) as may be necessary for [INSERT INV./FUND MANAGER NAME] to comply with federal and state regulatory requirements, to any individuals or institutions that, upon request after receiving a public advertising from [INSERT INV./FUND MANAGER NAME], seek information about investments managed by [INSERT INV./FUND MANAGER NAME], including the Company’s name, date of investment, nature of investment, investment amount and/or purchase price of the Company’s shares at the date the investment was made and as of the most recent date.

6.

Confidential Information will not include information which: (i)

is, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known or available to the public;

(ii)

was acquired by the Receiving Party before receiving such information from the Disclosing Party and without restriction as to use or disclosure;

(iii)

is hereafter rightfully furnished to the Receiving Party by a third party, without restriction as to use or disclosure;

(iv)

is information which the Receiving Party can document was independently developed by the Receiving Party;

(v)

is required to be disclosed pursuant to law, provided the Receiving Party uses reasonable efforts to give the Disclosing Party notice of such required disclosure if such notice is permitted by law; or

(vi)

is disclosed with the prior written consent of the Disclosing Party.

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Confidential Information is and shall remain the sole property of the Disclosing Party. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to any of the Disclosing Party's Confidential Information except as specified in this Agreement.

8.

Each Party acknowledges that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, each Party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach of this Agreement, as well as the right to pursue any and all other rights and remedies available at law in equity for such a breach, subject to the arbitration clauses contained herein.

NON-CIRCUMVENTION; NON-SOLICITATION 9.

The Parties hereby agree that the Company will not make any effort to engage in verbal discussion, written correspondence, or any other means of communication concerning the Business Purpose with any individuals or institutions in [INSERT INV./FUND MANAGER NAME]’s Investor Pipeline or seek investment directly from anyone in [INSERT INV./FUND MANAGER NAME]’s Investor Pipeline, except where prior written permission has been given by [INSERT INV./FUND MANAGER NAME]. [INSERT INV./FUND MANAGER NAME]’s Investor Pipeline shall, for the purposes of this Agreement, be considered the sole and rightful property of [INSERT INV./FUND MANAGER NAME].

10. Each Party agrees not to hire, solicit, nor attempt to solicit for itself or any third party the

services of any employee or subcontractor of the other Party, its parent or other Affiliates, without the prior written consent of the other Party; provided, however, that each Party is not prevented from employing such person who contacts that Party on his or her own initiative and without any direct or indirect solicitation by that Party.

11. The provisions of this Section (Clauses 9 and 10) shall continue in effect for eighteen (18)

months following (i) if the Business Purpose is not consummated, termination of discussions regarding the Business Purpose, or (ii) if the Business Purpose is consummated, the date on which [INSERT INV./FUND MANAGER NAME] or any investment vehicles managed by [INSERT INV./FUND MANAGER NAME] exit its investment in the Company.

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INTELLECTUAL PROPERTY 12. The Company agrees it will obtain [INSERT INV./FUND MANAGER NAME]’s written

permission before using the Company’s relationship with [INSERT INV./FUND MANAGER NAME] or [INSERT INV./FUND MANAGER NAME]’s name, logo or other Intellectual Property to pursue any business or investment opportunity independently of [INSERT INV./FUND MANAGER NAME]. This provision shall survive termination of this Agreement and continue in perpetuity.

13. “Intellectual Property” means all of [INSERT INV./FUND MANAGER NAME]’s intellectual

property rights, as they are now or may in the future exist or be conducted, including without limitation: a.

Any and all rights, privileges and priorities arising under the laws or treaties of the [COUNTRY], any state, territory or possession thereof; any other country or political subdivision or territory thereof; or the European Community or the African Union, relating to intellectual property, including patents, copyrights, trade names, trademarks, service marks, mask works, trade secrets, inventions, databases, names and logos, trade dress, technology, know-how, and other proprietary information and licenses from third persons granting the right to use any of the foregoing, including all registrations and applications for any of the foregoing that have been issued by or filed with the appropriate authorities and any common-law rights arising from the use of the foregoing; and

b.

All cost information, sales and pricing data, customer prospect lists, supplier records, customer and supplier lists, customer and vendor data, correspondence and lists, product literature, artwork, design, development and manufacturing files, vendor and customer drawings, formulations and specifications, quality records and reports and other books, records, studies, surveys, reports, plans and documents.

GOVERNING LAW AND ARBITRATION [NOTE: IF THE COMPANY IS U.S.-BASED OR BASED OUTSIDE OF AFRICA, PLEASE CONSULT WITH THE LEGAL TEAM FOR THE APPROPRIATE GOVERNING LAW PROVISIONS.] 14. This Agreement shall be governed by and construed in accordance with the laws of

[COUNTRY(IES)].

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15. Any dispute arising out of or in connection with this Agreement shall be resolved in

accordance with this section.

16. Either Party may give to the other at any time notice in writing that a dispute has arisen. If

the dispute is not resolved by agreement in writing between the Parties within fourteen (14) days of the notice being given, the dispute shall be resolved in accordance with Clause 17.

17. [FOR COUNTRY]: [INSERT APPLICABLE LAW TEXT] 18. [REPEAT AS NEEDED FOR RELEVANT COUNTRIES]

MISCELLANEOUS 19. Each Party agrees that entering into this Agreement shall not obligate either Party to enter

into any further agreements, either about the Business Purpose or any other subject. If, in the future, the Parties elect to enter into a binding commitment regarding the Business Purpose, such commitment shall be explicitly stated in a separate written agreement executed by each Party, and the Parties hereby affirm that they do not intend their discussions, correspondence and other activities to be construed as forming a contract regarding the Business Purpose or any other transaction between them without execution of such separate written agreement.

20. This Agreement is the complete and exclusive statement regarding the subject matter of

this Agreement and supersedes all prior agreements, understandings and communications, oral or written, between the Parties regarding the subject matter of this Agreement.

21. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising

from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

22. In the event that any of the provisions contained in this Agreement, shall, for any reason,

be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement. Furthermore, in lieu of any such invalid or unenforceable term or provision, the Parties intend that there shall be substituted as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible that will be valid and enforceable.

23. This Agreement may be executed in counterparts, each of which shall be deemed an

original, but all of which together shall be deemed to be one and the same agreement. A

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signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

24. This Agreement will be binding upon and inure to the benefit of each Party’s heirs,

successors, and permitted assigns.

TERM 25. Any Confidential Information regarding [INSERT INV./FUND MANAGER NAME]’s Investor

Pipeline shall be safeguarded by the Company and subject to the confidentiality obligations hereunder in perpetuity. All other Confidential Information shall be safeguarded by the Receiving Party and subject to the confidentiality obligations hereunder for a period of three (3) years from the date of disclosure to the Receiving Party. Clauses 9 and 10 will remain in effect until the end of the time period specified in Clause 11, and Clause 12 will remain in effect for the time period specified therein.

IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized officers or representatives.

[INSERT INV./FUND LEGAL NAME]

MANAGER

By: ___________________________

FULL

[INSERT PIPELINE LEGAL NAME]

COMPANY’S

By: ___________________________

Name:

Name:

Title:

Title:

FULL