STANDSTILL AGREEMENT (FOR CONFIDENTIAL SHARING BETWEEN M&A COMPANIES)

This Standstill Agreement protects your confidential information from being publicly disclosed after you share it with a company that wants to buy your business, and explains marking requirements, exclusions, nondisclosure duties, use limits, advising employees, disclosures to agents and subcontractors, return of information, disclosures required by law, survival, standstill period, publicity, disclaimers, limitation of liability, and general boilerplate for a standstill agreement.

Party 1 (You)

Name / Company

Individual / Company

Address 1

Address 2

City

State/Province

Zip

And Party 2 (Them)

Name / Company

Individual / Company

Address 1

Address 2

City

State/Province

Zip

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1 Marking Requirement

CONFIDENTIALITY - MARKING - Will Party-1 mark, stamp or note in a letter that the information is confidential?

Yes

all such private or confidential information, data or materials must be marked as "confidential" or "proprietary" to the disclosing party, however, for oral disclosures of information, data or materials, the disclosing party may describe the disclosure within twenty (20) days thereafter in a written notice provided to Contractor, referencing the time, date, and receiving individuals for the disclosure, at which point such described information, data or materials become Confidential Information of the disclosing party on a going forward basis from the date of receiving party's receipt of such letter.

all such private or confidential information, data or materials consist of all of the disclosing party's information, data and materials which the receiving party may access in the course of this Agreement.

2 Standstill Period

STANDSTILL PERIOD - On what date and year does the Standstill Period end?

3 Term

TERM - LENGTH - How long is the term of the agreement?

Term length in years.

How many years do I want?

	1 year 1 year
	2 years 2 years
	3 years 3 years

I will specify how long.

How long?

4 Evergreen

TERM - EVERGREEN - Will the agreement automatically renew or not?

Yes, I want the term to renew automatically for additional consecutive 1 year terms until either party gives notice that the term ends 30 days before the year is over.

Immediately upon expiration this Agreement automatically renews on the same terms and conditions for additional successive periods of one (1) year on each anniversary of the Effective Date, unless either party gives the other party notice that the Agreement does not renew at least thirty (30) days before the end of the then applicable Term.

Any renewal term shall be mutually agreed to by the parties in writing.

5 Termination for Convenience

TERMINATION FOR CONVENIENCE - Do I want to terminate the agreement at any time for any reason or no reason with thirty (30) days prior notice?

Yes

	Both parties can terminate for convenience. (e) Termination for Convenience. This Agreement may be terminated at any time by either party for its convenience, with or without cause, and for any reason or no reason, effective upon the non-terminating party's receipt of notice.
	Just Party-1 can terminate for convenience. (e) Termination for Convenience. This Agreement may be terminated at any time by Party-1 for its convenience, with or without cause, and for any reason or no reason, effective upon Party-2's receipt of notice.

6 Standstill

STANDSTILL - Do I want to impose a standstill requirement on both parties or just Party-2?

	Both parties. Party-1 shall ensure that Party-1 and its Affiliates will not solicit, initiate or encourage submissions of proposals or offers regarding a Transaction from any individual or entity other than Party-2 or its designated representatives.
	Just Party-2.

9 Subcontractors

SUBCONTRACTORS - Can one or both of the parties subcontract any responsibilities?

	Party-1 can subcontract with Party-2's consent, and Party-2 can subcontract without Party-1's consent. Party-1 may not subcontract any obligation under this Agreement without Party-2's prior written consent. Party-2 can subcontract without Party-1's consent. Each party is responsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own.
	Party-2 can subcontract with Party-1's consent, and Party-1 can subcontract without Party-2's consent. Party-2 may not subcontract any obligation under this Agreement without Party-1's prior written consent. Party-1 can subcontract without Party-2's consent. Each party is responsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own.
	Either party can subcontract with the other party's consent. Neither party can subcontract any obligation under this Agreement without the other party's prior written consent. Each party is responsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own.
	Both parties can subcontract without the other party's consent. Both parties are free to subcontract their obligations under this Agreement. Each party is responsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own.
	No subcontracting. The parties may not subcontract any of their obligations under this Agreement.

10 Governing Law

GENERAL - GOVERNING LAW - Which state or country's laws govern this contract?

11 Forum, Venue or Jurisdiction

GENERAL - FORUM - Which state or country is the forum for this contract?

12 Assignment

GENERAL - ASSIGNMENT - Do I want both parties to be able to assign this Agreement, just Party-1, or not allow any assignments?

Both parties.

Broad right to assign.

Any of the parties may assign, delegate, sublicense or otherwise transfer this Agreement, or any right or obligation under this Agreement, to a third party.

Limited right to assign to a third party buying a party's (to this Agreement) shares or assets.

This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in whole or in part without the prior written consent of the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior written consent is invalid. However, any party may assign this Agreement to a third party purchasing: (a) majority control of the party's equity shares; or (b) all or substantially all of either (i) a party's assets or (ii) the assets of the party's relevant business unit under this Agreement.

Just Party-1.

Broad right to assign.

This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by Party-2 in whole or in part without the prior written consent of Party-1. Any transfer, assignment, delegation or sublicense by Party-2 without Party-1's prior written consent is invalid. Party-1 may assign, delegate, sublicense or otherwise transfer this Agreement, or any right or obligation under this Agreement, to a third party.

Limited right to assign to a third party buying a party's (to this Agreement) shares or assets.

This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by Party-2 in whole or in part without the prior written consent of Party-1. Any transfer, assignment, delegation or sublicense by Party-2 without Party-1's prior written consent is invalid. Party-1 may assign this Agreement. Party-1 may assign this Agreement to a third party purchasing all or substantially all of Party-1's assets or the assets of the relevant Party-1 business unit under this Agreement.

No assignments.

This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by either party in whole or in part without the prior written consent of the other party. Any transfer, assignment, delegation or sublicense by a party without the other party's prior written consent is invalid.

A marking requirement requires the disclosing party to mark or stamp the information as confidential or describe it as so in a letter given to the receiving party.

"Standstill Period" means the length of time a party is restricted from engaging in certain behavior, often used to set the time period during which there are clear requirements for how parties may communicate when one party is interested in buying the assets of or a controlling interest in the other party.

The "Term" means how long the contract will be in force.

An "Evergreen" term, also referred to as an "Automatic Renewal" means that once the term comes to a certain date in the future, it automatically extends for an additional time period or repeated additional time periods until either party sends notice that the term does not renew anymore.

"Termination for Convenience" means a party's right to terminate the agreement at any time for any reason at all (or even no reason), and is usually accompanied by advance written notice.

"Standstill" means restricting a party from engaging in certain behavior for a limited period of time, often used to clearly state how parties may communicate when one party is interested in buying the assets of or a controlling interest in the other party.

"Limitation of Liability" is a provision used to limit the kinds of damages a company could be liable for if sued. Parties often want to limit their liability for "Consequential Damages" which usually involves damages that are much larger than the money owed under the contract, and include lost profits and punitive damages. Parties may also want to impose a hard cap on their liability. For instance, a party could state that it won't be liable for more than $10,000, or for more than the fees under the contract.

"Limitation of Liability" is a provision used to limit the kinds of damages a company could be liable for if sued. Parties often want to limit their liability for "Consequential Damages" which usually involves damages that are much larger than the money owed under the contract, and include lost profits and punitive damages. Parties may also want to impose a hard cap on their liability. For insance, a party could state that it won't be liable for more than $10,000, or for more than the fees under the contract.

A "Subcontractor" is a third party who one of the signing parties wants to perform some of its responsibilities under the Agreement, such as providing a Service or Deliverable.

The "Governing Law" is the particular state or country's laws that you choose to apply to this contract. Often times, the governing law is the state or country within which one or both of the parties have a main office, or where they are conducting business under the contract.

"Forum", "Venue" or "Jurisdiction" refers to where disputes between the parties must be litigated. Often the parties will still be free to seek injunctions or other temporary relief outside of the forum as they see fit.

"Assignment" means the right to transfer the contract, or a right or obligation under the contract, to a third party. Usually, this is prohibited or limited to a third party buying the shares or assets of a party to the contract.

Comments:
This is great! I was looking for one of these contracts
bob kimbo Posted on Nov 13, 2008

[WARNING: THIS AGREEMENT AND ALL QUESTIONS ARE OFFERED AS SAMPLES ONLY. USE OF THIS AGREEMENT IS BY YOU AT YOUR DIRECTION, IS NOT DIRECTED BY WHICHDRAFT.COM, AND IN NO WAY CONSTITUTES LEGAL ADVICE. WHICHDRAFT.COM RECOMMENDS THAT ANYONE ENTERING INTO A CONTRACT CONSULT AN ATTORNEY FOR LEGAL ADVICE. THE COPYRIGHT IN THIS CONTRACT IS OWNED BY RADIO FREE CONTRACTS LLC.]

STANDSTILL AGREEMENT

This Standstill Agreement ("Agreement") is made as of July 30, 2010 (the "Effective Date") by and between , an individual with an address at , , ("Party-1"), and , a company with an address at , , ("Party-2").

The parties are considering a Transaction with each other (the "Business Purpose"). In the course of discussions regarding the Business Purpose, Party-1 may disclose to Party-2 certain Confidential Information (as that term is later defined). By virtue of this Agreement, each party wishes to protect the confidentiality of such Confidential Information.

Party-1 and Party-2 therefore agree as follows:

1. DEFINITIONS.

(a) "Affiliate" means any person, firm or entity that, directly or indirectly, is controlled by or is under common control with a party to this Agreement.

(b) "Confidential Information" means private or confidential information, data or materials of Party-1, this Agreement, and the Transaction, and all such private or confidential information, data or materials must be marked as "confidential" or "proprietary" to the disclosing party, however, for oral disclosures of information, data or materials, the disclosing party may describe the disclosure within twenty (20) days thereafter in a written notice provided to Contractor, referencing the time, date, and receiving individuals for the disclosure, at which point such described information, data or materials become Confidential Information of the disclosing party on a going forward basis from the date of receiving party's receipt of such letter. [QR-12]

(c) "Government Authority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of the United States of America or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality, territory, protectorate or possession.

(d) "Law" means all Laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of Law of any Government Authority.

(e) "Standstill Period" means the time period beginning on the Effective Date and ending on TEXTFIELD [QR-36].

(f) "Transaction" means a transaction or series of transactions involving Party-1 and/or its security holders relating to (a) the purchase, sale, exchange or any other acquisition, direct or indirect of any of the assets (including any intellectual property rights) or shares of Party-1; (b) the issuance of any debt or equity securities of Party-1; or (c) any transaction in which the shares of Party-1 are or become subject to any amalgamation, arrangement, merger or similar transaction which directly or indirectly results in any business combination involving Party-1.

2. CONFIDENTIALITY.

(a) Confidential Information Disclosures. In the performance of this Agreement Party-2 may receive the Confidential Information of Party-1. Disclosures of Confidential Information made by Party-1 (or the "disclosing party") to Party-2 (or the "receiving party"), are pursuant to all terms and conditions of this Agreement. All Confidential Information of the disclosing party will remain the exclusive property of the disclosing party. The terms and conditions of this Agreement are deemed to be Confidential Information of both parties.

(b) Exclusions. Confidential Information does not include information, data or materials that, as proved by written records:

(i) Public Domain. Are or become a part of the public domain through no act or omission on the part of the receiving party and no violation of any obligation of nondisclosure by any third party; or

(ii) Independently Developed. Are independently developed by the receiving party without reference to the disclosing party's Confidential Information, as evidenced through written records created in the normal course of the receiving party's business; or

(iii) Third Party Source. Are disclosed to the receiving party through a third party source or series of sources without any violation of nondisclosure with respect to such information, data or materials by any source(s) in the series (however, such information only becomes Confidential Information once the receiving party is aware of such breach).

(c) Duties. Without limiting any other obligations under this Agreement, the parties agree to the following specified duties:

(i) Nondisclosure and Uses. The receiving party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and materials of a similar nature, to maintain and cause its employees to maintain the confidentiality of the Confidential Information by not copying, publishing, disclosing to third parties or using the Confidential Information; except employees of a receiving party may use the Confidential Information in order to perform the receiving party's obligations or engage in activities contemplated under the Business Purpose. A receiving party may not modify or delete any proprietary rights legend appearing in the disclosing party's Confidential Information.

(ii) Advise Employees. The receiving party must advise each employee before receiving direct or indirect access to the Confidential Information of the obligations of the receiving party regarding the Confidential Information under this Agreement.

(iii) Disclosures to Agents and Subcontractors. A receiving party may share Confidential Information with: (a) its attorneys under an obligation of confidentiality and nondisclosure no less protective of the disclosing party's Confidential Information than the terms and conditions of this Agreement; and (b) its subcontractors pursuant to a written confidentiality agreement no less protective of the disclosing party's Confidential Information than this Agreement (a "Subcontractor Confidentiality Agreement"), provided that in no event may an attorney or subcontractor of a receiving party disclose Confidential Information to any other third party, with the exception of a Government Authority to which a disclosure may be made (for subcontractors, only pursuant to a provision in the Subcontractor Confidentiality Agreement identical to Section 2.4 (Disclosures Required by Law) of this Agreement), except that the attorney or subcontractor must give the prior notice required therein to both the receiving party and the disclosing party. Receiving party agrees to assume all liability and responsibility for such attorneys'' and subcontractors' compliance with and breach of the terms and conditions of this Agreement as if such attorneys' and subcontractors' acts and omissions were receiving party's own.

(iv) Notice. Upon discovery, receiving party agrees to provide disclosing party immediate telephonic and written notice of a breach of: (a) any obligation of confidentiality and nondisclosure required hereunder prior to a disclosure; and (b) any Subcontractor Confidentiality Agreement.

(v) Return of Confidential Information. After a request by the disclosing party, and after termination or expiration of this Agreement, receiving party must within thirty (30) days return or destroy (and certify to such destruction in writing, such certification not to be unreasonably withheld or delayed) all Confidential Information of the disclosing party, including, without limitation: (a) all tangible and electronic documents, drawings, materials, hardware, disks, tapes; and (b) all copies, notes, summaries and excerpts of any of the foregoing; and (c) all Confidential Information in the possession of any third parties to whom receiving party disclosed Confidential Information pursuant to this Agreement. Notwithstanding the foregoing, receiving party may retain Confidential Information as required by applicable Laws or orders of a Government Authority with jurisdiction over receiving party (the "Retention Requirements"), and any such uses or disclosures of Confidential Information by the receiving party will be limited to only those uses and disclosures mandated by the Retention Requirements.

(d) Disclosures Required by Law. In the event any Confidential Information is required to be disclosed by Law or order of any Government Authority having jurisdiction over the receiving party (including as necessary for a party to assert a claim in a court of competent jurisdiction), before any such disclosure the receiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other restriction regarding such disclosure. In the event such Confidential Information is disclosed in such circumstances, such Confidential Information shall continue to constitute Confidential Information in all other circumstances pursuant to this Agreement.

3. TERM AND TERMINATION.

(a) Term. The term of this Agreement (together with any renewals, the "Term") begins on the Effective Date and expires one (1) year [QR-24] later. Immediately upon expiration this Agreement automatically renews on the same terms and conditions for additional successive periods of one (1) year on each anniversary of the Effective Date, unless either party gives the other party notice that the Agreement does not renew at least thirty (30) days before the end of the then applicable Term. [QR-18]

(b) Survival. The following captioned sections survive any termination, expiration or non-renewal of this Agreement: "Nondisclosure and Uses" (only for purposes of complying with the "Return of Confidential Information" provision and only for thirty (30) days or such longer period as necessary to comply with the Retention Requirements, also, if any personnel of a receiving party retains in their memory any specific contents of a disclosing party's Confidential Information, such specific contents may not ever be disclosed to any third parties except under "Disclosures Required by Law"), "Return of Confidential Information", "Disclosures Required by Law", "Survival" and "General".

(c) Termination for Insolvency. If either party is adjudged insolvent or bankrupt, or upon the institution of any proceedings by it seeking relief, reorganization or arrangement under any Laws relating to insolvency, or if an involuntary petition in bankruptcy is filed against a party and the petition is not discharged within sixty (60) days after filing, or upon any assignment for the benefit of a party's creditors, or upon the appointment of a receiver, liquidator or trustee of any of a party's assets, or upon the liquidation, dissolution or winding up of its business (each, an "Event of Bankruptcy"), then the party affected by any Event of Bankruptcy must immediately give notice of the Event of Bankruptcy to the other party, and the other party may terminate this Agreement by notice to the affected party.

(d) Termination for Breach. If either party breaches any provision contained in this Agreement, and the breach is not cured within thirty (30) days after the breaching party receives notice of the breach from the non-breaching party, the non-breaching party may then deliver a second notice to the breaching party immediately terminating this Agreement.

[QR-17]

4. STANDSTILL. This provision only applies during the Standstill Period. Party-2 shall ensure that the Party-2 and its Affiliates will not solicit, initiate or encourage submissions of proposals or offers regarding a Transaction from any individual or entity other than Party-1 or its designated representatives. Party-1 shall ensure that Party-1 and its Affiliates will not solicit, initiate or encourage submissions of proposals or offers regarding a Transaction from any individual or entity other than Party-2 or its designated representatives. [QR-35]

5. NO DEFINITIVE AGREEMENT REGARDING TRANSACTION. Nothing in this term sheet shall be construed to require Party-1 or Party-2 to enter into a definitive agreement regarding the Transaction ("Definitive Agreement"). A Definitive Agreement would be binding on the parties only after all of its provisions are successfully negotiated between the parties and they have both executed the Definitive Agreement. It is expressly understood by the parties that this Agreement does not create any obligations: (a) for either party to enter into a Definitive Agreement; and (b) as to the provisions of a Definitive Agreement.

6. PUBLICITY. Each party agrees to not make, publish or distribute (whether in print, electronically or otherwise) any public announcements, press releases, advertising, marketing materials or promotional materials regarding the Transaction or the execution or performance of this Agreement without the prior written consent of the other party.

7. DISCLAIMER. Except as expressly stated in this Agreement (if at all), each make no representations and extend no warranties of any kind, either express or implied, including, without limitation, any warranties of merchantability or fitness for a particular purpose. Party-2 acknowledges that Party-1 makes no representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information provided by it or fitness for Party-2's purposes, nor shall Party-1 be deemed to have made such representation or warranty. Party-2 agrees that it will rely upon its own investigations, due diligence and analysis in evaluating whether to proceed with a Transaction.

8. LIMITATION OF LIABILITY. THIS LIMITATION OF LIABILITY PROVISION APPLIES IN THE AGGREGATE AND NOT ON A PER CLAIM BASIS, WHETHER ANY DAMAGES ARE CHARACTERIZED IN TORT, NEGLIGENCE, CONTRACT, OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF A LIMITED REMEDY. THIS LIMITATION OF LIABILITY PROVISION DOES NOT LIMIT A PARTY'S LIABILITY FOR GROSS NEGLIGENCE, INDEMNIFICATION OBLIGATIONS, BREACH OF CONFIDENTIALITY REQUIREMENTS, INTENTIONAL MISCONDUCT, INTENTIONAL TORTS AND INTENTIONAL VIOLATIONS OF LAW. NEITHER PARTY IS LIABLE TO THE OTHER OR ANY THIRD PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT. [QR-33] EACH PARTY'S LIABILITY SHALL NOT EXCEED THE AMOUNTS PAID UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD BEFORE THE CLAIM. [QR-34]

9. GENERAL. Entire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements regarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be amended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge that they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents, has the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. The parties may not subcontract any of their obligations under this Agreement. [QR-63] Governing Law and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of TEXTFIELD [QR-27], applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in TEXTFIELD [QR-28], regardless of the inconvenience of the forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and inures to the benefit of the parties' successors and assigns. Either party may assign, delegate, sublicense or otherwise transfer this Agreement, or any right or obligation under this Agreement, to a third party. [QR-46] No Waivers, Cumulative Remedies. A party's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly stated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive. Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions. Notices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in this Agreement by each party. Captions and Plural Terms. All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.

IN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date. Each person who signs this Agreement below represents that such person is fully authorized to sign this Agreement on behalf of the applicable party.

PARTY-1

By: __________________________________
Print Name: ___________________________
Title: ________________________________

PARTY-2

By: __________________________________
Print Name: ___________________________
Title: ________________________________