CONFIDENTIALITY AGREEMENT

 

This Confidentiality Agreement (the “Agreement”) is being entered into between Save 2 Support (the “Company”) and the Recipient identified below in connection with a possible business transaction or series of possible business transactions involving the Company (the “Transaction”).

 

Confidential Information means (a) any information concerning the Company or its shareholders, directors, officers, members, managers, employees, subsidiaries, affiliates, (including, without limitation, financial advisors, attorneys, and accountants) and their respective assets, businesses, affairs, and operations, that is furnished to the Recipient or its Representatives (as hereafter defined) by, or on behalf of, the Company, whether before or after the date of this Agreement, and whether in written or electronic form (the “Materials”), (b) any analyses, compilations, studies, or other documents or records prepared by the Recipient or its Representatives that contain, reflect, or are derived from information in the Materials (“Work Papers”), and (c) the fact that the Materials have been made available to the Recipient, that the Recipient has inspected any part of the Materials, that discussions or negotiations are or may be taking place concerning a possible Transaction involving the Company and the Recipient or any fact with respect to those discussions or negotiations, including the status thereof.

 

By signing and returning this Agreement, the Recipient agrees with the Company as follows:

 

1.  Confidential Information will be used by the Recipient and its Representatives solely for the purpose of evaluating the Transaction.

 

2.  Neither the Recipient nor its Representatives will disclose any Confidential Information except as permitted in this Agreement or unless hereafter approved in writing by the Company prior to the disclosure. Further, neither the Recipient nor its Representatives will disclose: (a) the fact that Recipient is, or has previously been, receiving, preparing or reviewing Confidential Information; (b) the fact that the parties are, or have previously been, considering and evaluating the Transaction or that any discussions or negotiations concerning the Transaction are, or have previously been, taking place between the parties; (c) any of the terms, conditions or other facts with respect to the Transaction or such evaluation, discussions or negotiations, including the status thereof; or (d) that this Agreement exists or was entered into (the above are collectively referred to as the “Transaction Facts”). 

 

3.  The Recipient may disclose Confidential Information to officers, directors, employees, attorneys, accountants or consultants (“Representatives”) of the Recipient who need to know the Confidential Information for the purpose of evaluating the Transaction. The Recipient will inform its Representatives of its confidentiality obligations under this Agreement before disclosing any Confidential Information to its Representatives. The disclosure of any Confidential Information by any Representative of the Recipient in breach of this Agreement will constitute a breach of this Agreement by the Recipient, for which the Recipient will be liable.

 

4.  In the event that the Recipient or any of its Representatives is requested or required by applicable law, regulation or legal process to disclose any of the Confidential Information or Transaction Facts, the Recipient will notify the Company promptly (to the extent legally permitted) so that the Company may seek a protective order or other appropriate remedy. Recipient agrees not to, and agrees to cause its Representatives not to, oppose any action by the Company to obtain a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, Recipient will furnish only that portion of the Confidential Information or Transaction Facts which it is legally required to disclose at that time and will exercise its reasonable efforts to obtain confidential treatment, to the extent available, for such Confidential Information or Transaction Facts.

 

5.  Neither the Company nor the Recipient has any obligation to enter into or consummate any transaction involving the Company unless and until a definitive agreement to such effect is executed in the future. The Company or the Recipient may at any time, in its unrestricted discretion, reject any or all proposals or terminate discussions and negotiations concerning any transaction involving the Company. Whenever requested by the Company in writing, the Recipient will promptly return all of the Materials, cause all Work Papers to be destroyed (whether in the possession of the Recipient or its Representatives), and provide written certification to the Company that all Work Papers have been destroyed. Notwithstanding the termination of discussions or negotiations, the return of the Materials, or the destruction of Work Papers, the Recipient will continue to be bound by its obligations under this Agreement. Notwithstanding the foregoing, Recipient may retain one set of the Work Papers for its records, but such retained Work Papers will remain subject to the terms of this Agreement without expiration until such time as such Work Papers are returned to the Company or destroyed in accordance with this Paragraph 5.

 

6.  Although the Company will endeavor to include in the Materials relevant information known to it, the Company does not make any representation or warranty about the accuracy or completeness of any of the Materials. Neither the Company nor any of its Representatives will have any liability to the Recipient or its Representatives resulting from the use of, or reliance on, any of the Materials or any past or future written or oral statement about the Company, or any proposed transaction, whether made by the Company or any of its Representatives except as may be set forth in a future definitive agreement, if any, entered into to effectuate a transaction involving the Company.

 

7.  The Recipient stipulates that the breach of this Agreement by the Recipient or its Representatives will cause irreparable harm to the Company for which damages may not constitute an adequate remedy. Accordingly, the Recipient agrees that any attempted, threatened, or actual breach of this Agreement by the Recipient or its Representatives may be enjoined by an appropriate court order or judgment. The Recipient waives any requirement for the posting of a bond or other security as a condition to such court order or judgment. Injunctive relief will not be the sole remedy of the Company for a breach of this Agreement, but all legal and equitable remedies will continue to be available to the Company. The prevailing party in any litigation relating to the breach of this Agreement will be entitled to recover (in addition to any damages or other relief granted) its legal fees and other expenses in connection with such litigation.

 

8.  This Agreement embodies the entire agreement between the parties and supersedes all prior or contemporaneous oral or written agreements or understandings concerning Confidential Information. This Agreement cannot be waived or modified except by a written agreement executed by both the Company and the Recipient. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS. Any dispute relating to or arising out of this Agreement will be litigated in the state or federal courts located in Dallas County, Texas, and both parties waive any objection to such jurisdiction and venue, and waive any claim or assertion that such jurisdiction and venue could be considered improper or forum non conveniens. The parties further agree to waive the right to trial by jury in any dispute relating to or arising out of this Agreement.