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504 East 5th Street
Austin, TX 78701
This agreement (the “Agreement”) is made and entered by and between the Prospective Purchaser (the “Interested Party”) and the Seller (the “Company”), and supersedes any prior confidentiality agreement between the parties relating to the matters set forth in this Agreement.
WHEREAS, the Interested Party is considering a possible confidential business transaction with the Company and, in connection with such transaction, the Interested Party will be exposed to certain proprietary information of the Company that is of a confidential and secret nature and certain copyrighted or otherwise protected materials.
NOW, THEREFORE, in consideration of the Company furnishing confidential information to the Interested Party for use in considering a possible transaction with the Company, the Interested Party agrees as follows:
- Evaluation Material. The Company will make available to the Interested Party information on a confidential basis concerning the Company’s financial condition, operations, assets, liabilities and other information not generally ascertainable from public sources (collectively, the “Evaluation Material”) for evaluation by the Interested Party and its authorized Representatives (as defined below). The term “Evaluation Material” shall also be deemed to include the fact that this Agreement has been executed and the fact that the parties are discussing a possible transaction, including any terms of any such transaction. “Evaluation Material” does not include information that (i) is or becomes generally available to the public other than as a result of a disclosure in violation of this Agreement, (ii) is within the Interested Party’s possession prior to this Agreement, provided that such information was not obtained in knowing violation of a confidentiality agreement or other contractual, legal, or fiduciary obligation of confidentiality with respect to such information, or (iii) becomes available after the date of this Agreement on a non-confidential basis from a third-party, provided that such third-party has not, to the Interested Party’s knowledge, breached a confidentiality agreement or other contractual, legal, or fiduciary obligation of confidentiality with respect to such information.
- Use of Evaluation Material; Confidentiality. The Interested Party agrees that the Evaluation Material will be used solely for the purpose of evaluating a possible transaction with the Company and not for purposes of competing, directly or indirectly, with the Company or otherwise interfering with the business operation or prospects of the Company; that the Evaluation Material will be kept confidential and that neither the Interested Party nor its affiliates, directors, officers, employees, agents, or advisors (collectively, the “Representatives”) will disclose any of the Evaluation Material in any manner whatsoever unless specific prior written permission has been given by the Company to disclose such information, or as otherwise provided in this Agreement.
- Limited Disclosure. The Interested Party agrees that the Evaluation Material may only be disclosed to its Representatives who need to know such information for the sole purpose of evaluating a possible transaction with the Company. The Interested Party shall be responsible for any breach of this Agreement by any of its Representatives and agrees, at its sole expense, to take all reasonable measures (including, but not limited to, court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.
- Requests for Information. If the Interested Party or any of its Representatives is required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of the Evaluation Material, the Interested Party or its Representative shall provide the Company with prompt written notice of any such requirement, to the extent permitted by law, so that the Company may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, the Interested Party or any Representative is, nonetheless, in the written opinion of counsel, legally compelled to disclose Evaluation Material to any tribunal or else stand liable for contempt or suffer other censure or penalty, the Interested Party or Representative may, without liability under this Agreement or applicable law, disclose to such tribunal only that portion of the Evaluation Material that such counsel advises it is legally required to disclose, provided that it exercises its best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal.
- Return of Evaluation Material. If the Interested Party decides not to proceed with a transaction with the Company, the Interested Party will promptly inform the Company of that decision. In that case, or at any time upon the written request of the Company for any reason, the Interested Party will promptly deliver to the Company all Evaluation Material. Notwithstanding the return or destruction of the Evaluation Material, the Interested Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations under this Agreement.
- Waiver and Amendment. It is understood and agreed that no failure or delay by either party in exercising any right, power, or privilege under this Agreement shall operate as a waiver of such right, power, or privilege, nor shall any single or partial exercise of a right, power, or privilege under this Agreement preclude any other or future exercise of such right, power, or privilege or the exercise of any other right, power, or privilege under this Agreement.
- Remedies for Breach. It is understood and agreed that money damages would not be a sufficient remedy for any breach or threatened breach of this Agreement by the Interested Party or any Representative and that the Company shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threatened breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or equity. In the event the Company is required to take action to enforce this Agreement, the Company shall be entitled to recover its reasonable legal fees, court costs, and other direct expenses incurred by the Company in connection with such action, including any appeals, and the parties to this Agreement expressly agree that they shall jointly seek a protective order in order to protect from disclosure the Evaluation Material during the process of any litigation relating to this Agreement.
- Expenses; Governing Law; Term. Except as set forth in paragraph 7 of this Agreement, each party shall pay its own fees and expenses and those of its agents, advisers, attorneys, and accountants with respect to the negotiation of this Agreement, the negotiation of a final definitive agreement, and if such definitive agreement is executed, the closing of the transactions contemplated by such agreement. The Interested Party agrees to submit to the jurisdiction and venue of any court, federal and state, within the State of Texas for purposes of any suit, action or other proceeding arising out of, relating to, or in connection with this Agreement. This Agreement shall (a) be governed by and construed in accordance with the law of the State of Texas without reference to its conflict of laws principles and (b) terminate upon the earlier to occur of (i) two years after the date of this Agreement or (ii) the date on which the Interested party enters into an agreement with respect to a transaction with the Company.
- Captions. Paragraph captions have been included for the convenience of reference of the parties and are not to be construed as limiting the substance of such paragraph.
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