# BOARD MEMBER CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT **BAU Farm Foundation** — A North Carolina Nonprofit Corporation *Draft — starter template. Review and adopt by the Board of Directors. Consult NC nonprofit counsel before execution.* **Effective Date:** __________, 20__ --- ## 1. PARTIES This Confidentiality and Non-Disclosure Agreement (this "Agreement") is entered into by and between **BAU Farm Foundation**, a North Carolina nonprofit corporation (the "Foundation"), and the undersigned individual serving as a director, officer, committee member, or advisor of the Foundation (the "Recipient"). --- ## 2. PURPOSE The Recipient will, in the course of service to the Foundation, receive access to non-public information concerning the Foundation, its donors, grantees, employees, volunteers, program participants, and partners. This Agreement establishes the Recipient's obligations to protect that information, consistent with the Foundation's Bylaws (Article VII — Conflicts of Interest; Article X — Records and Inspection), Whistleblower and Fraud-Reporting Policy, and the fiduciary duties of loyalty and care owed by directors under N.C. Gen. Stat. Chapter 55A. --- ## 3. DEFINITION OF CONFIDENTIAL INFORMATION **3.1 Confidential Information.** "Confidential Information" means any non-public information, in any form, that the Recipient learns, receives, or accesses in connection with service to the Foundation, including without limitation: 1. **Donor and Funder Information** — donor identities (including anonymous donors), gift amounts, pledge terms, donor communications, prospect research, wealth screening, and cultivation strategies; 2. **Grantee and Beneficiary Information** — grant applications, financial statements of applicants, farm-level operating data, scholarship recipient identities, and case files of individuals served; 3. **Personnel Information** — employee and volunteer names, compensation, benefits, performance evaluations, disciplinary actions, medical or accommodation records, and background-check results; 4. **Financial Information** — budgets, forecasts, unaudited financial statements, banking and investment details, cash-management practices, and information related to the annual audit prior to public release of Form 990; 5. **Strategic and Programmatic Information** — strategic plans, program designs, unpublished research, curricula, pilot data, evaluation results, and vendor or partner negotiations; 6. **Legal and Governance Information** — litigation, claims, investigations, tax matters, legal advice, executive-session discussions, Board and committee deliberations, draft minutes, and pending policy changes; 7. **Whistleblower and Investigation Information** — the identity of reporters, subjects, and witnesses in any matter under the Whistleblower and Fraud-Reporting Policy; investigation records; and interim findings; 8. **Technology and Data** — passwords, access credentials, databases, donor CRM contents, and any personal data protected by applicable privacy law; and 9. **Third-Party Information** — information the Foundation receives from donors, grantees, partners, or vendors under an obligation of confidentiality. **3.2 Exclusions.** Confidential Information does not include information that: 1. is or becomes generally available to the public other than through breach of this Agreement; 2. was rightfully in the Recipient's possession without a duty of confidentiality prior to disclosure by the Foundation; 3. is rightfully received by the Recipient from a third party without a duty of confidentiality; or 4. is required by federal tax law to be publicly disclosed (e.g., Form 990, Form 1023, and determination letter, as required by IRC §§ 6104(d) and 6104(e)). --- ## 4. OBLIGATIONS OF RECIPIENT **4.1 Non-Disclosure.** The Recipient shall not disclose Confidential Information to any person outside the Foundation, except: (a) to other directors, officers, employees, or agents of the Foundation with a legitimate need to know; (b) to advisors bound by confidentiality obligations at least as protective as this Agreement; (c) as required by law or valid legal process, subject to Section 4.5; or (d) with the prior written consent of the Chair of the Board (or, where the Chair is the subject of the information, the Vice Chair). **4.2 Non-Use.** The Recipient shall use Confidential Information solely to fulfill the Recipient's duties to the Foundation and not for personal benefit, the benefit of any related person or family member (as defined in the Conflict-of-Interest Policy), or the benefit of any third party. **4.3 Care.** The Recipient shall exercise at least the same degree of care to protect Confidential Information as a reasonably prudent fiduciary would exercise with respect to comparably sensitive information of their own, and in no event less than reasonable care. **4.4 Board Deliberations.** The Recipient shall not disclose the substance of Board or committee deliberations, executive sessions, votes of individual directors, or draft documents outside the Board or the specific committee, except through officially adopted communications approved by the Board or its designee. **4.5 Compelled Disclosure.** If the Recipient is compelled by subpoena, court order, regulatory demand, or other legal process to disclose Confidential Information, the Recipient shall, to the extent legally permitted, promptly notify the Chair and the Foundation's counsel so the Foundation may seek a protective order or other appropriate remedy. The Recipient shall disclose only the portion of Confidential Information that is legally required and shall cooperate with the Foundation's efforts to obtain confidential treatment. **4.6 No Trading or Advantage.** The Recipient shall not use Confidential Information to obtain any commercial, competitive, or personal advantage, including in connection with real estate, agricultural markets, vendor relationships, employment opportunities, or investments in entities that transact or may transact with the Foundation. **4.7 Data Security.** The Recipient shall (a) store Confidential Information only on devices protected by strong authentication and, where reasonably available, full-disk encryption; (b) use Foundation-provided email, storage, and collaboration tools for Foundation business when reasonably practicable; (c) not forward Foundation communications to personal accounts except as necessary for legitimate Foundation work; and (d) promptly notify the Chair and the Compliance Officer of any suspected loss, theft, or unauthorized access to Confidential Information. --- ## 5. RESERVATION OF WHISTLEBLOWER AND LEGAL RIGHTS Nothing in this Agreement shall be construed to prohibit or discourage the Recipient from: 1. reporting suspected violations of law or Foundation policy under the Foundation's Whistleblower and Fraud-Reporting Policy; 2. reporting possible violations of federal or state law or regulation to any governmental agency or entity, including the IRS, U.S. Department of Labor, Occupational Safety and Health Administration, Securities and Exchange Commission, NC Attorney General, or NC Department of the Secretary of State; 3. making disclosures protected under the Sarbanes-Oxley Act (18 U.S.C. § 1514A, § 1513(e)), the federal False Claims Act (31 U.S.C. § 3730(h)), or the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)), including disclosures made in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, or in a court filing made under seal; or 4. participating in any governmental investigation or proceeding, or receiving any award under an applicable whistleblower program. The Recipient is not required to notify the Foundation before making any such report or disclosure. --- ## 6. OWNERSHIP AND RETURN OF MATERIALS **6.1 Ownership.** All Confidential Information, and all copies, notes, summaries, and derivative works based thereon, are and shall remain the property of the Foundation. **6.2 Return or Destruction.** Upon (a) request of the Foundation, (b) resignation or removal from the Board or committee, or (c) expiration of the Recipient's term without renewal, the Recipient shall promptly return to the Foundation, or destroy at the Foundation's option, all Confidential Information in the Recipient's possession or control, including electronic copies, and shall certify such return or destruction in writing if requested. The Recipient may retain one archival copy of Board and committee materials to the extent necessary to defend against claims relating to service on the Board, subject to the continuing confidentiality obligations of this Agreement. --- ## 7. TERM AND SURVIVAL **7.1 Term.** This Agreement takes effect on the Effective Date and continues for the duration of the Recipient's service to the Foundation. **7.2 Survival.** The Recipient's obligations with respect to Confidential Information shall survive termination of service and continue for so long as the information remains confidential in fact, except that obligations with respect to donor identities, personnel information, whistleblower information, and legally privileged material shall survive indefinitely. --- ## 8. REMEDIES **8.1 Injunctive Relief.** The Recipient acknowledges that a breach of this Agreement may cause irreparable harm to the Foundation and its stakeholders for which monetary damages would be inadequate. Accordingly, in addition to any other remedy available at law or in equity, the Foundation shall be entitled to seek injunctive and other equitable relief without the necessity of posting a bond. **8.2 Other Remedies.** Nothing in this Agreement limits the Foundation's right to pursue any other remedy, including removal from the Board under Bylaws § 3.7, disciplinary action, indemnification claims, or referral to law enforcement or regulators. --- ## 9. GENERAL PROVISIONS **9.1 Governing Law.** This Agreement is governed by the laws of the State of North Carolina, without regard to its conflict-of-laws principles. **9.2 Venue.** Any action arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in **Cleveland County, North Carolina**, and the parties consent to personal jurisdiction and venue in those courts. **9.3 Entire Agreement.** This Agreement, together with the Foundation's Bylaws, Conflict-of-Interest Policy, and Whistleblower and Fraud-Reporting Policy, constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior discussions and agreements. **9.4 Amendment.** This Agreement may be amended only by a writing signed by the Recipient and an authorized officer of the Foundation. **9.5 Severability.** If any provision of this Agreement is held to be unenforceable, the remaining provisions shall continue in full force and effect, and the unenforceable provision shall be modified to the minimum extent necessary to render it enforceable. **9.6 No Waiver.** The failure of the Foundation to enforce any provision of this Agreement shall not constitute a waiver of that provision or any other provision. **9.7 Assignment.** The Recipient may not assign this Agreement. The Foundation may assign this Agreement to any successor entity. **9.8 Counterparts and Electronic Signature.** This Agreement may be executed in counterparts and by electronic signature, each of which shall be deemed an original. --- ## 10. ACKNOWLEDGMENT AND SIGNATURES The Recipient acknowledges having read this Agreement, having had the opportunity to ask questions and consult independent counsel, and agreeing to be bound by its terms. **RECIPIENT** Name: __________________________ Role (Director / Officer / Committee Member / Advisor): __________________________ Signature: __________________________ Date: __________________________ **BAU FARM FOUNDATION** By: __________________________ Name: __________________________ Title: __________________________ Date: __________________________ --- ## APPENDIX A — ANNUAL RE-ACKNOWLEDGMENT I reaffirm my obligations under the BAU Farm Foundation Board Member Confidentiality and Non-Disclosure Agreement dated __________, 20__, and confirm that I am not aware of any breach by me of that Agreement during the preceding year, except as disclosed below. Disclosures (if any): __________________________ Name: __________________________ Signature: __________________________ Date: __________________________