MUTUAL CONFIDENTIALITY, NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT
This Mutual Confidentiality, Non-Disclosure and Non-Circumvention Agreement (the “Agreement”) is made and entered into between Knight Investment Group I, LLC (together with its affiliates, “Knight”) and the undersigned party, for itself and its subsidiaries and affiliates (“Company”). Each of Knight and Company are individually referred to as a “Party” and collectively referred to as the “Parties.” Knight and Company intend to engage in discussions and negotiations concerning a proposed acquisition of shares or assets identified as “Dave's Garage Doors” and/or the establishment of a business relationship between Company and Knight (the “Transaction”) and it is anticipated that each Party will disclose or cause to be disclosed to the other Party certain confidential or proprietary information and Knight and Company are entering into this Agreement in order to assure the confidentiality of such information in accordance with the following terms:
- The effective date of this Agreement is the date set forth on the signature page hereto below the signature for the Parties (the “Effective Date”).
- In connection with the Transaction, a Party (“Discloser”) may disclose certain Confidential Information (as defined below) to the other Party (the “Recipient,” which means the Party receiving Confidential Information hereunder, whether an individual, corporation, partnership, limited liability company or other entity, together with its Representatives) or any of its Representatives (as defined below), whether in furtherance or continuance of an established business relationship or the Transaction or for the purpose of enabling the Parties to evaluate the feasibility of a business relationship or the Transaction, including, but not limited to, tangible, intangible, visual, electronic information about Discloser or Discloser’s affiliates and subsidiaries and its and their respective business, present or future business plans, pricing, customers, strategies, trade secrets, operations, records, finances, assets, technology, algorithms, data and information that reveals the processes, designs, methodologies, technology or know how by which Discloser or such of Discloser’s affiliates or subsidiaries’ existing or future products, services, applications and methods of operation are developed, conducted or operated. Company and Knight are entering into this Agreement in order to assure the confidentiality of such Confidential Information in accordance with the terms of this Agreement.
- As used herein, “Confidential Information” means all information in tangible or intangible form, whether of a technical, business or other nature that is disclosed by Discloser or any of its Representatives to Recipient or any of its Representatives, whether furnished before or after the Effective Date and regardless of the manner in which it is furnished, or that is otherwise learned by Recipient in the course of its discussions or business dealings with, or its physical or electronic access to the facilities or networks of, Discloser, or that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure the Recipient knows or should know ought to be treated as proprietary and confidential.
- Each Party shall, and shall cause its affiliates and its and their respective employees, agents, associates, attorneys, accountants, consultants, financing sources, co-investors and other representatives (collectively, “Representatives”) to the extent they receive Confidential Information from such Party to, hold in confidence and not disclose to any person outside its organization (other than its Representatives who have a need to know such information for the purposes of evaluating the Transaction): (i) any Confidential Information of the other Party; (ii) the fact that discussions or negotiations between the Parties are taking or have taken place; (iii) any of the terms (including price), conditions or other facts with respect to the Transaction, whether oral or written, and including copies or drafts of the transaction documents, the status of the discussions or negotiations or facts with respect to the Transaction or either Party’s consideration of the Transaction; or (iv) the fact that this Agreement exists or information has been requested or made available to Recipient or its Representatives (except that either Party may make any disclosure otherwise prohibited under clauses (i), (ii), (iii) or (iv) above if, in the opinion of its legal counsel, such disclosure is required by applicable law, rule or regulation, legal process or by any judicial, regulatory or governmental order or request or as otherwise requested by any governmental agency, regulatory authority (including, any self-regulatory organization claiming to have jurisdiction) or any bank examiner provided that no such notice shall be required for routine regulatory examinations and audits, including self-regulatory examinations). Recipient shall, and shall cause its Representatives to use: (x) such information in evaluation and consideration of the Transaction in accordance with the terms of this Agreement and (y) with respect to such information, no less than the same degree of care as Recipient uses with respect to its own confidential information to protect the confidentiality of such information. Recipient agrees, at its sole expense, to take all commercially reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Confidential Information. Notwithstanding the foregoing, the parties acknowledge and agree that the Recipient shall be permitted to comply with general regulatory requests not focused on the subject matter of this Agreement from a governmental authority (e.g. FTC, DOJ, SEC) having the authority to regulate or oversee any aspect of the Recipient’s business, and that no notice shall be required in such circumstances.
- This Agreement imposes no obligation upon Recipient with respect to Confidential Information that: (a) can be reasonably demonstrated to have been in Recipient’s possession or known to Recipient before receipt from Discloser; (b) is or becomes known to the public or otherwise available to Recipient on a non-confidential basis, but only if the disclosure of such Confidential Information did not result from a violation of Recipient’s contractual, legal or fiduciary obligations, including the obligations set forth in this Agreement; (c) is received by Recipient from a third party without a duty of confidentiality; (d) is independently developed by Recipient without use of or reference to any Confidential Information; or (e) is disclosed by Recipient with Discloser’s prior written approval.
- This Agreement shall remain in effect until it is terminated by either Party in writing. Such termination shall be effective thirty (30) days after delivery of such written notice. Notwithstanding the foregoing, (i) this Agreement shall survive with respect to disclosures made prior to the effective date of termination and (ii) the provisions of Sections 7–9 and 13–17 hereof and this Section 6 shall remain in full force and effect and survive any termination of this Agreement. Unless the Parties otherwise agree in writing, a Recipient’s duty to protect Confidential Information will expire on the second anniversary of the date of this Agreement.
- This Agreement shall supersede any “click through” or similar or other confidentiality agreement entered into by Recipient or any of its Representatives, including in connection with accessing any electronic data room, and any such “click through” or similar or other confidentiality agreement will have no force or effect, whether entered into before, on or after the date hereof.
- Upon receipt of a written request from Discloser, Recipient shall, and shall cause its Representatives to, promptly return (to the extent reasonably practicable) or otherwise destroy all written material containing or reflecting any information contained in the Confidential Information (including all copies, extracts or other reproductions) and agrees to destroy all documents, memoranda, notes and other writings whatsoever (including all copies, extracts or other reproductions), prepared by Recipient or its Representatives based on the information contained in the Confidential Information. If requested by Discloser, Recipient shall promptly have its duly authorized officer certify to such destruction to the Discloser in writing; provided, however, that the obligation to return or destroy Confidential Information shall not apply to copies of Confidential Information made as a matter of routine information technology backup. Regardless of whether the Confidential Information is returned or destroyed, Recipient may retain one (1) archival copy of Discloser’s Confidential Information for use solely in the event a dispute arises hereunder and only in connection with such dispute and to establish compliance with any applicable laws or regulations; provided, that such archival material shall remain subject to the confidentiality provisions of this Agreement.
- Each Discloser warrants that it has the right to disclose its confidential or proprietary information. The Parties understand that neither Party nor any of its Representatives accepts responsibility for, has made, makes, or is authorized to make any express or implied representation or warranty as to the accuracy, reliability or completeness of any of the Confidential Information. Each Party agrees that unless and until a definitive agreement between the Parties with respect to the Transaction has been executed and delivered, neither of the Parties will be under any legal obligation with respect to the Transaction by virtue of this Agreement or any written or oral expression with respect to the Transaction except as specifically set forth in this Agreement. Each Party reserves the right, in its absolute discretion and without giving any reasons, at any time and in any respect to terminate discussions with the other Party with respect to the Transaction.
- Each Party acknowledges that damages for improper disclosure of information that is subject of this Agreement may be irreparable; therefore, the injured Party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available to it. Such remedy shall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or equity to the injured Party.
- This Agreement does not obligate either Party or the respective affiliates to enter into the Transaction or any other transaction or to provide any product or service to the other party. Neither this Agreement, nor any exchange of Confidential Information under it, will be construed as creating any fiduciary, advisory or other relationship or obligation of any kind between the Parties beyond the terms of this Agreement. This Agreement shall not be assignable or transferable by either Party without the prior written consent of the other Party; provided that either Party may assign this Agreement to any of its wholly owned affiliates.
- All notices and communications hereunder shall be in writing and shall be deemed given: (i) when delivered personally or by commercial messenger or courier services; (ii) three (3) business days following the mailing thereof by registered certified mail (return receipt requested); or (iii) when transmitted by facsimile (with acknowledgement of complete transmission) or other electronic means, in each case, to a Party at the address as shown below the signature of such Party on the signature page of this Agreement (or at such other address for a party as shall be specified by like notice or, if specifically provided for in this paragraph 12).
- This Agreement may be executed in two or more identical counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute the agreement when a duly authorized representative of each Party has signed the counterpart. Facsimile and emailed copies of signatures shall be deemed to be originals for purposes of the effectiveness of this Agreement.
- This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without regard to any conflicts of law principles to the contrary. Each of the Parties hereto consents and agrees that any dispute arising out of or relating to the making of this Agreement shall be resolved in the state or federal courts located in the State of Oregon, and in no other forum, and exclusive jurisdiction and venue is hereby vested in such courts. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TO A JURY TRIAL IN RESPECT OF ANY CLAIM OR CAUSE OF ACTION IN ANY COURT IN ANY JURISDICTION BASED UPON OR ARISING OUT OF OR RELATING TO THIS AGREEMENT.
- Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be deemed modified to the extent necessary to make it enforceable under applicable law. If any such provision is not enforceable as set forth in the preceding sentence, the unenforceability of such provision shall not affect the other provisions of this Agreement, but this Agreement shall be construed as if such unenforceable provision had never been contained herein.
- The Recipient acknowledges that Knight has developed, sourced, and/or been granted access to certain investment opportunities, including the Transaction, through its proprietary efforts, relationships, and resources (each, a “KIG Opportunity”). In consideration of being provided access to Confidential Information relating to a KIG Opportunity, the Recipient agrees that, for a period of twenty-four (24) months from the Effective Date, neither it nor any of its Representatives shall, directly or indirectly, circumvent or bypass Knight in order to pursue, participate in, or consummate any investment or transaction involving a KIG Opportunity without Knight’s prior written consent. Without limiting the foregoing, the Recipient shall not directly or indirectly: (i) contact, solicit, or engage with any seller, target company, or other counterparty associated with a KIG Opportunity, except through Knight; or (ii) use Confidential Information to independently pursue or participate in a KIG Opportunity outside of Knight. In the event of a breach of this Section, the Recipient agrees that Knight shall be entitled to recover: (i) all reasonable out-of-pocket costs and expenses incurred by Knight in connection with such KIG Opportunity; and (ii) an amount equal to any management fees, transaction fees, carried interest, promote, or other economic benefits that Knight would have reasonably expected to receive in connection with such transaction. The Recipient acknowledges that a breach of this Section would cause irreparable harm for which monetary damages alone may be insufficient, and agrees that Knight shall be entitled to seek equitable relief, including injunctive relief and specific performance, in addition to any other remedies available at law or in equity. Notwithstanding the foregoing, this Section shall not apply to any opportunity that the Recipient can demonstrate was independently sourced without use of or reference to Confidential Information and without involvement of Knight.
- This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any prior oral or written agreements, and all contemporaneous oral communications. All additions or modifications to this Agreement must be made in writing and must be signed by the Parties. Any failure to enforce a provision of this Agreement shall not constitute a waiver thereof or of any other provision.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date written below.
(Your signature below)