Strategic Partner Confidentiality Terms

PREFERRED PARTNER CONFIDENTIALITY AGREEMENT

WHEREAS, the Preferred Partner is an individual who has been granted certain duties, rights, and authority on behalf of their Parent Company to perform select services on behalf of their Parent Company’s Clients to enter into and participate in the pursuit of valuing or appraising the Client’s Company; and

WHEREAS, the Client has sought the services of the Preferred Partner’s Parent Company where the need for a formal business valuation of the Client’s Company has been required as part of the continued services offered by the Preferred Partner’s Parent Company; and

WHEREAS, the Appraiser is an employee of the Brokerage with which the Preferred Partner has engaged to provide a certified business valuation of Fair Market Value for the Client’s Company; and

WHEREAS, the Brokerage is known as VR Business Brokers of St. Louis, LLC, a limited liability company registered in the State of Missouri and regularly engages in the performance of formal certified business valuations; and

WHEREAS, in order to assess the value  of the Client’s Company, wherein each of the parties are willing to disclose to the other certain of its financial, proprietary, confidential, and/or trade secret information, subject to the terms and conditions imposed by this Agreement (where references herein below to the Preferred Partner and/or the Client and/or the Client’s Company and/or the Appraiser and/or the Brokerage shall be interchangeable); and

WHEREAS, the party providing information shall be the “Provider” and the party receiving the information shall be the “Recipient.”

NOW, THEREFORE, in exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Confidential Information.

1.1  For purposes of this Agreement, “Confidential Information” means any information, however communicated, disclosed by one party to this Agreement (the “Provider”) to the other (the “Recipient”), or otherwise received or held by the Recipient (whether so communicated, disclosed, received or held prior to or after the date of this Agreement), which is described in Section 1.2 or bears a label or other designation (or as to which the Provider gives the Recipient written notice before or promptly after such information is received by the Recipient) indicating that the information constitutes financial, proprietary, confidential or trade secret information of the Provider, and all photocopies and other reproductions of such information, except for any such information:

(a)  that is or becomes generally available to the public other than as a result of disclosure by the Recipient or any party to whom the Recipient has disclosed such information;

(b)  that is obtained by the Recipient, on a non-confidential basis, from a third party entitled to disclose such information; or

(c)  that is independently developed by the Recipient without reference to Confidential Information; or

(d)  that is already known by the Recipient at the time such information is received by the Recipient; provided that no information will be deemed to be within any of these exceptions merely because (i) it is included in broader or general information known to the Confidentiality Agreement public or the Recipient; or (ii) one or more narrower or less general facts or concepts included in such information are known to the public or the Recipient.

1.2  Subject to the exceptions set forth in subparagraphs 1.1(a)-(d) above, the following shall be deemed to be Confidential Information for all purposes of this Agreement:

(a)  the nature of and interest of the Client’s Company in their consideration of valuing and/or selling its business and assets;

(b)  the Brokerage’s and the Appraiser’s processes, methodologies, forms, agreements, notes, meeting minutes, reports, media, and consultation services and related consultation products;

(c)  all unpublished information disclosed in current or future patent or trademark applications of the Client’s Company or any subsidiary or parent or other affiliate thereof;

(d)  all financial and other business or accounting information pertaining to the Client’s Company and its business;

(e)  all information pertaining to the customers, vendors and employees of the Client’s Company;

(f)  all letters, agreements and documents executed by the parties with respect to any engagement agreements or proposed transactions except to the extent otherwise expressly stated in any such letters, agreements, and documents;

(g)  all other information which the Client’s Company considers to be proprietary, confidential or trade secret information and so informs the other; and

(h)  all photocopies or other reproductions of any of the foregoing.

1.3  Confidential Information disclosed to or received by the Client’s Company may or may not bear a stamp, legend or other designation identifying it as such or indicating that it is covered by this Agreement, but the lack of any such stamp, legend or designation shall not alter the confidential, proprietary or trade secret nature of such information or its inclusion in the Confidential Information protected under this Agreement.

2. Use and Nondisclosure of Confidential Information.

2.1.  All Confidential Information of one party as Provider received or held by the other as Recipient shall be used by the Recipient only for assessment of the feasibility of the Proposed Transaction and in furtherance of such transaction if it occurs, and for no other purpose. Neither party shall use any Confidential Information of the other party for any commercial or other purpose whatsoever without the specific prior written consent of the other party.

2.2.  Each of the parties as Recipient:

(a)  shall protect and safeguard all Confidential Information of the other party as Provider in the same manner and to at least the same extent as the Recipient protects and safeguards its own confidential, proprietary or trade secret information;

(b)  shall take any other commercially reasonable steps requested by the Provider to maintain the secrecy of such Confidential Information;

(c)  except for photocopies or other reproductions needed by the Recipient’s Representatives (as hereinafter defined) for the purpose of evaluating the Proposed Transaction, shall not make photocopies or other reproductions of any such Confidential Information without the Provider’s specific prior written consent;

(d)  shall not disclose any such Confidential Information to any subsidiary or parent company or other affiliate of the Recipient, or to any customer or potential customer, or to any other third party (except to those of Recipient’s directors, officers, employees, agents, lenders, investors, and representatives who need to know such information for the purpose of evaluating the Proposed Transaction (collectively, “Recipient’s Representatives”)), it being understood that the Recipient’s Representatives shall be informed by the Recipient of the confidential nature of such information and shall be directed by the Recipient to treat such information confidentially in accordance with this Agreement without the specific prior written consent of the Provider; and

(e)  shall be fully responsible for any loss or damage suffered by the Provider as a result of misuse or unauthorized disclosure of such Confidential Information by the Recipient or any party whose knowledge or possession of the same results from the Recipient’s disclosure of or failure to protect such Confidential Information.

2.3.  Upon receiving notice of any legal demand, request, or requirement for disclosure of Confidential Information, Recipient shall:

(a)  immediately notify Provider of the existence, terms and circumstances of such demand, request, or requirement;

(b)  consult with Provider on the advisability of taking legally available steps to resist or narrow such demand, request or requirement; and

(c)  assist Provider in taking any such steps Provider deems to be advisable.

In the event any Confidential Information must be disclosed as a result of any such demand, request or requirement, Recipient shall disclose only that portion of the Confidential Information which it is advised by qualified legal counsel is legally required to be disclosed, and exert its best efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information disclosed.

2.4.  Each of the parties as Recipient shall destroy or deliver to the other party as Provider all information and materials received by the Recipient in connection with this Agreement or the Proposed Transaction, together with all reproductions thereof, and all copies of notebooks, reports, manuals, notes, drawings, computer disks and other written, graphic and media materials, and all equipment, product samples and other materials of any kind whatsoever, embodying or containing any Confidential Information of the Provider, upon the Provider’s written request for any or all of the same at any time.

2.5.  The rights and obligations of the parties under this Section 2 shall continue for a period of two (2) years from the date on which the Proposed Transaction occurs or, if the Proposed Transaction does not occur, for a period of two (2) years from the date of this Agreement.

3. Relationship Between the Parties. Nothing contained in this Agreement shall be deemed to constitute a partnership or joint venture between the Parties or to give rise to any license or right of either of the Parties to any patent, technology or information owned or controlled by the other Party.

4. Provider’s Right to Disclose Each Provider represents that it has the right to disclose the Confidential Information to the other.

5. No Public Announcement. The Parties shall not make any statement, or any public announcement, or any release to trade publications or to the press, or make any statement to any competitor, customer, or vendor of the other or to any other third party, with respect to any discussions regarding the Proposed Transaction, except as may be necessary, in the opinion of its legal counsel, to comply with the requirements of any law, governmental order or regulation.

6. Formal Agreement. Except for the terms and provisions of this Agreement, the Parties shall not be committed in any way with respect to the matters to be discussed by them concerning the Proposed Transaction, unless and until a formal agreement with respect thereto is executed by the appropriate officers of the concerned Parties.

7. Remedies for Breach. Each of the Parties as Recipient understands that any violation of this Agreement may result in irreparable injury to the other party as Provider, and agrees that, if it violates any term of this Agreement, the Provider will be entitled to seek equitable relief, including injunction and specific performance, in addition to all other remedies available to the Provider.

8. Governing Law. This Agreement shall be governed by the substantive laws of the State of Missouri without giving effect to any law or rule that would result in a court applying the laws of any other jurisdiction.

9. Miscellaneous. This Agreement: (a) constitutes the entire agreement between the Parties pertaining to the matters with which it deals and supersedes all prior agreements between them pertaining to those matters; and (b) may not be modified except by a written amendment signed by each of the Parties. No waiver of any rights under this Agreement will be effective unless in writing and signed by the Party whose rights are being waived. The illegality, invalidity, or unenforceability of any part of this Agreement shall not in any way diminish the validity or unenforceability of the remainder of this Agreement.