CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Confidentiality and Non-Disclosure Agreement (this "Agreement") is made and entered into by the signer below and on the date shown below ("Recipient"), in favor of Schulz School Advisors, as agent for and on behalf of its client, the identity of which will be disclosed following execution of this Agreement (such client, together with all of its officers, directors, shareholders, managers, members, accountants, agents, employees, attorneys and representatives, shall collectively be referred to as the "Company").
WHEREAS, the Company may furnish to Recipient certain Confidential Information (defined below) relating to the business and affairs of the Company for the sole purpose of discussing and negotiating, on a confidential basis, a possible sale of all or substantially all of the stock or assets of the Company to Recipient (the "Potential Transaction"); and
WHEREAS, Recipient acknowledges and agrees that the Confidential Information is sensitive and confidential, and that its disclosure to any third parties not bound by this Agreement would be damaging to the Company and the business conducted by the Company;
NOW, THEREFORE, in order to induce the Company to provide the Confidential Information to Recipient, and in consideration for the Company's agreement to provide Confidential Information to Recipient, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, Recipient hereby agrees as follows:
1. Confidential Information.
(a) The term "Confidential Information" shall mean (i) the fact that the Company is contemplating a possible sale of its business, and any and all correspondence, negotiations, or discussions (whether oral or written) between the Company and Recipient (or any Recipient Representatives, as defined below) pertaining to a Potential Transaction, and (ii) any and all other information delivered, disclosed, or otherwise made available by or on behalf of the Company to Recipient, or otherwise made available to Recipient, in any form at any time (whether or not in a tangible, electronic or oral medium and whether before, on or after the date of this Agreement) that relates to the business and affairs of the Company, including but not limited to any business plans; financial statements, projections and budgets; market studies; pricing policies and price lists; personnel and employee information; customer and potential customer lists and information; past, pending or potential transactions involving the Company, including any past, pending or potential sale, merger or liquidation of or involving the Company or its business; past or pending litigation or other legal proceedings involving the Company or any of its affiliates; technical plans, research data, designs, ideas, discoveries; business methods and procedures used by the Company; and any other commercial information relating to the Company and/or its business, in each case whether or not a trade secret, as well as any other information that is a trade secret, and all notes, analyses, summaries and other materials prepared by Recipient that contain, are based on, or otherwise reflect any of the foregoing.
(b) Notwithstanding Section 1(a), the term "Confidential Information" shall not include any information that: (i) was, is or becomes publicly available (other than as a result of a breach of this Agreement by Recipient or any of Recipient's officers, managers, directors, members, shareholders, employees, agents or other representatives (collectively, "Recipient Representatives"); (ii) was known to Recipient before disclosure by the Company or (iii) was, is or becomes known or available to Recipient on a non-confidential basis from an independent source whose disclosure to Recipient has not violated any obligation of confidentiality.
2. Protection of Confidential Information. Recipient agrees that it shall: (a) use Confidential Information solely for the purpose of evaluating the Potential Transaction and for no other purpose; (b) use reasonable measures to safeguard the confidentiality of the Confidential Information with the same degree of care that Recipient would take to protect its own confidential information, and at minimum, shall safeguard the Confidential Information with a commercially reasonable degree of care; and (c) refrain from disclosing any Confidential Information to any person, except for (i) disclosures to Recipient Representatives who are actively and directly participating in the evaluation of the Potential Transaction and who need to know the Confidential Information for purposes of evaluating the Potential Transaction, provided that all such Recipient Representatives agree to be bound by the terms of this Agreement, (ii) disclosures authorized by the Company in writing or (iii) disclosures required by law.
3. Third Party Demands for Disclosure. If Recipient is required by a discovery request, subpoena, civil investigative demand, or similar process to disclose any Confidential Information, Recipient shall deliver to the Company written notice of such request or requirement as soon as reasonably practicable to give the Company sufficient time to object to or seek a protective order or other remedy with respect to the disclosure, and Recipient agrees to cooperate, at Company's expense, with the Company in seeking such protective order or other remedy. In any event, regardless of whether or not a protective order or other remedy is obtained, Recipient agrees to furnish only that portion of the Confidential Information that is required by law and will exercise all commercially reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to such Confidential Information.
4. Return or Destruction of Confidential Information. At any time upon the written request of the Company, Recipient shall promptly cease using and shall destroy and/or return to the Company, as requested, all Confidential Information in the possession, custody, or control of Recipient or any Recipient Representatives, and shall not retain any copies thereof. Recipient shall deliver to the Company a certificate signed by an authorized officer of Recipient, certifying that the requirements of this Section 4 have been met.
5. No Waiver. No failure or delay by the Company in exercising any right, power, or privilege under this Agreement 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 under this Agreement. Any waiver of a breach of this Agreement shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach.
6. Remedies. Recipient acknowledges and agrees that money damages would not be a sufficient remedy for any breach or threatened breach of this Agreement by Recipient or any Recipient Representative. In the event of any such breach or threatened breach, the Company shall be entitled to equitable relief, including specific performance and injunction, and reasonable attorneys' fees incurred in connection with the enforcement of this Agreement, in addition to all other remedies available at law or in equity to the Company. Recipient hereby waives all requirements for posting bond or other security and for showing irreparable harm in connection with any injunctive relief sought by the Company hereunder.
7. Term. Except as otherwise expressly provided herein, this Agreement and all rights and obligations set forth in this Agreement shall continue for a period of five (5) years, provided however that the confidentiality requirements of this Agreement shall continue for as long as the applicable Confidential Information remains a trade secret.
8. Attorneys' Fees. The Company shall be entitled to recover reasonable attorney's fees and other costs incurred in connection with any legal proceeding to enforce this Agreement.
9. Definitive Agreement. Unless and until a definitive written agreement regarding a Potential Transaction between the Company and Recipient is executed and delivered by both parties, neither party shall be under any legal obligation of any kind whatsoever with respect to a Potential Transaction by virtue of this Agreement, except for the matters specifically agreed to in this Agreement. Each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party with regard to the Potential Transaction and to terminate discussions and negotiations with the other party at any time without liability.
10. No Warranty. The Company makes no representation or warranty as to the accuracy or completeness of any Confidential Information, and no liability shall result to the Company from use of any Confidential Information by Recipient or any Recipient Representatives, except as may be expressly set forth in a definitive written agreement regarding a Potential Transaction executed and delivered by both parties.
11. Entire Agreement. This Agreement contains the entire agreement of the parties concerning its subject matter. This Agreement may be amended at any time only by written document signed by both parties.
12. Governing Law; Venue. This Agreement shall be governed by and construed under the internal laws of the State of Florida, without regard to the principles of conflicts of law. The parties consent and agree that Palm Beach County, Florida shall be the exclusive, proper, and convenient venue for any legal proceeding relating to this Agreement, and each of them waives any defenses, whether asserted by motion or pleadings, that Palm Beach County, Florida is an improper or inconvenient venue.
13. Severability. If any provision or portion of any provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions or any portions thereof shall not be affected thereby and shall remain in full force and effect and be binding upon the parties as though the illegal, invalid or unenforceable provision or portion thereof were not contained herein.
14. Successors and Assigns. This Agreement, together with all modifications and amendments, if any, shall be binding on the parties and on their respective successors and permitted assigns.
15. Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures may be delivered by facsimile, email, portable document format ("pdf") or other means of electronic transmission, and such delivery shall be deemed effective to the same extent as delivery of a manually executed counterpart of this Agreement.
IN WITNESS WHEREOF, Recipient has executed this Confidentiality and Non-Disclosure Agreement as of the date first set forth above.
RECIPIENT:
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By: