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PERSONAL AND CONFIDENTIAL

December 5, 2022




This CONFIDENTIALITY AGREEMENT (this “Agreement”) shall govern the conditions under which [ ] (“Recipient” or “we” or “us” or “our”) has agreed to discuss a possible transaction (the “Potential Transaction”) involving a [ & ] components (the “Company”), whose name shall be disclosed upon our execution hereof. Company and Recipient may be referred to herein individually as a “Party” or collectively as the “Parties.”

  1. In connection with our discussions regarding a Potential Transaction, we understand that we may require certain Confidential Information (as defined below) about the Company. As a condition to such discussions, and as a material inducement to the Company and its Representatives (as defined below) to provide to us Confidential Information, we agree to keep strictly confidential all Confidential Information conveyed by the Company or the Company’s Representatives, including M&A Advisory Group, LLC d/b/a M&A Healthcare Advisors (“MAHA”), to us or, directly or indirectly, to our Representatives. A Party’s “Representatives” shall mean all of the Party’s subsidiaries and affiliates and its and their respective officers, directors, employees, members, attorneys, accountants, consultants, agents, lenders, and financial advisors. The term “Confidential Information” shall mean any information, data, or materials furnished by the Company or the Company’s Representatives to us or our Representatives pertaining to the Company’s or its affiliates’ or subsidiaries’ business, financial, or internal plans or affairs, regardless of form of communication (whether oral, in hard copy, electronic, magnetic recording or storage, graphic or written form, or any other medium whatsoever), and whether furnished before, on or after the date of this Agreement. Confidential Information includes, but shall not be limited to, business plans and processes, strategies and technologies, business forecasts, product or service development information, financial information (including billing, pricing, and costs), commercial and marketing information and data, technical information, personnel information, customer information, lists or identities of actual or potential customers, status and terms of contract negotiations, and computer source and object code, and all analyses, compilations, forecasts, data, studies, notes, translations, memoranda, or other documents or materials (whether prepared by us or our Representatives or otherwise).
  2. This Agreement will confirm our agreement to retain in strict confidence all Confidential Information, unless such information (i) is, was or becomes available to us or our Representatives from a source other than the Company or the Company’s Representatives, provided that such other source is not in violation of any other obligation of confidentiality or nonuse, (ii) was or becomes available to the public from a source other than us or our Representatives, or (iii) is independently developed by us or our Representatives without the use of or reference to any Confidential Information, with such independent development to be evidenced by written record. We will use such Confidential Information only in connection with our consideration of whether to enter into the Potential Transaction with the Company and will not otherwise use it in for our benefit (whether in our business or otherwise) or disclose it to others. We shall have the right to communicate the Confidential Information to our Representatives assisting with the Potential Transaction, provided that each such person shall be directed to abide by the terms of this Agreement. We hereby agree that we will be responsible for any breach of any provision of this Agreement by our Representatives. We agree that, without prior written consent of the Company and except in accordance with the provisions set forth in this Agreement with respect to a “Required Disclosure” (as defined below), we will not disclose to any other person that we have received Confidential Information, that we are in discussions or negotiations with the Company as to the Potential Transaction, or that the Company is considering the Potential For purposes of this Agreement, “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity and individual.
  3. We hereby acknowledge and agree that MAHA will arrange for appropriate contacts for due diligence purposes related to the Potential Transaction. Unless otherwise agreed to in writing by MAHA and the Company, all (i) communications regarding the Potential Transaction, (ii) requests for additional information, (iii) requests for tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed by us to MAHA, and we will not contact the Company or any of the Company’s employees directly or indirectly with respect to any of the foregoing. Further, we agree not to initiate, contact, or engage in discussions with any customer, lender, equity holder or supplier of the Company regarding the Potential Transaction without the prior written consent of the Company or MAHA.
  4. For a period of two (2) years from the date of this Agreement, we and our Representatives agree not to directly or indirectly solicit for employment or employ any employees or consultants of the Company, other than through a public general advertisement or through the use of search firms (in each case not directed at, or targeted to, the Company or any of the Company’s employees or consultants).
  5. We acknowledge that neither the Company nor any of the Company’s Representatives makes any representation as to the accuracy or completeness of such Confidential Information and that neither the Company nor any of the Company’s Representatives (including, without limitation, MAHA) shall have any liability to us as a result of our reliance on or use of such Confidential Information. We agree that, until a definitive acquisition agreement is executed between us and the Company, the Company has no legal obligation of any kind whatsoever with respect to any transaction (including the Potential Transaction) by virtue of this Agreement or otherwise. All Confidential Information shall remain the exclusive property of the Company, and nothing in this Agreement shall be deemed to grant us any rights in the Confidential Information, or any part thereof.
  6. We acknowledge that (i) the Company and MAHA will conduct the process for the Potential Transaction in their sole discretion (including, without limitation, negotiating with any prospective party and entering into definitive agreements without prior notice to us or any other person), (ii) any procedures relating to the Potential Transaction may be changed at any time without notice to us or any other person, (iii) the Company shall have the right, in its sole discretion, to reject or accept any potential party, proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason, and (iv) we shall have no claims whatsoever against the Company or the Company’s Representatives (including, without limitation, MAHA) arising out of or relating to such actions.
  7. Promptly upon a written request by or on behalf of the Company, or if we decide we do not wish to proceed with a Potential Transaction, we agree to destroy (and we shall certify all such destruction in writing by an authorized officer) all Confidential Information in our or our Representatives’ possession or to which either we or our Representatives have access. Notwithstanding the foregoing, we and our Representatives shall be permitted to retain one copy of the Confidential Information to the extent required to comply with applicable law or regulatory authority; provided any such Confidential Information so retained shall remain subject to the confidentiality and nonuse obligations of this Agreement for so long as such Confidential Information is so retained.
  8. We may disclose Confidential Information to the extent requested or required by any law, regulation, or legal, regulatory, or judicial process or proceeding or by the rules of any recognized stock exchange, but we will provide prompt advance written notice (to the extent legally permissible) to the Company prior to disclosing any Confidential Information and cooperate with any attempt by the Company to obtain confidential treatment thereof. Disclosures pursuant to this paragraph are herein referred to as a “Required Disclosure.”
  9. We acknowledge and agree that money damages would not be a sufficient remedy for any breach of this Agreement and that, as a remedy for any such breach, the Company shall be entitled to specific performance, injunctive, and/or other equitable relief without the posting of any bond. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement. In addition to the Company’s other rights hereunder, the Company retains all rights and remedies the Company may have under applicable law. In the event of litigation in relation to this Agreement, the non-prevailing Party shall reimburse the prevailing Party for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) associated with the litigation upon receipt of a final judgment from a court of competent jurisdiction.
  10. This Agreement and all matters arising from or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of law principles thereof. We hereby submit ourselves for the sole purpose of this Agreement and any controversy arising hereunder, to the exclusive jurisdiction of the state courts in the state of Delaware and waive any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over us by any state court in the state of Delaware. Further, we agree that, if at any time during the term of this Agreement, any provision hereof proves to be or becomes invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent necessary in order to render such provision valid and enforceable; if such provision may not be so saved, it shall be severed and the remainder of this Agreement shall remain in full force and effect.
  11. We agree and acknowledge that this Agreement cannot be amended or terminated, and no provision may be waived or modified, without the written consent of both the Recipient and the Company. We understand and expressly agree that the Company is an intended third-party beneficiary of this Agreement and that each of the Company and MAHA (on behalf of the Company) is entitled to enforce any rights established herein and all of our obligations set forth herein. We further understand and agree that MAHA is executing this Agreement as advisor for the Company and that MAHA shall not have any liability under this Agreement.
  12. The Recipient acknowledges MAHA as the original procuring cause for the Company with respect to the Potential Transaction. If the Recipient circumvents MAHA in the Potential Transaction during the two (2) year period this Agreement is active, Recipient agrees to pay MAHA the full commission provided in the Engagement Letter between the Company and MAHA. The Recipient agrees that all correspondence, letters of intent and contracts will make reference to MAHA as the original procuring cause with an automatic copy sent to MAHA concurrently when sent to the Company.
  13. This Agreement will continue for a period of two (2) years from the date hereof.
  14. We acknowledge and agree that the undersigned officer is duly authorized to bind us to this Agreement.

RECIPIENT

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Signed by Mark Thomas, M&A Healthcare Advisors
Signed On: September 19, 2022


Signature Certificate
Document name: {{gravity-field-id-10}}
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Timestamp Audit
July 4, 2022 9:19 am PST{{gravity-field-id-10}} Uploaded by Mark Thomas, M&A Healthcare Advisors - [email protected] IP 78.1.60.55
July 4, 2022 9:35 am PSTParseur Email - [email protected] added by Mark Thomas, M&A Healthcare Advisors - [email protected] as a CC'd Recipient Ip: 93.143.168.33
July 4, 2022 9:40 am PSTParseur Email - [email protected] added by Mark Thomas, M&A Healthcare Advisors - [email protected] as a CC'd Recipient Ip: 93.143.168.33
September 19, 2022 10:34 pm PSTParseur Email - [email protected] added by Mark Thomas, M&A Healthcare Advisors - [email protected] as a CC'd Recipient Ip: 78.1.60.55
September 19, 2022 10:35 pm PSTParseur Email - [email protected] added by Mark Thomas, M&A Healthcare Advisors - [email protected] as a CC'd Recipient Ip: 78.1.60.55