You hereby enter into and agree to be bound by (and by electronically reaffirming this Agreement at any time and from time to time, you will thereby reaffirm) all terms and conditions of this Agreement in favor of and for the benefit of the LTVtrade, LLC and DSRM brokerage, LLC and the Companies (as hereinafter defined). In order to allow ("you") to evaluate, from time to time, the desirability of purchasing ("Proposed Transactions") assets ("Assets") owned or held by any company that has listed assets on the LTVtrade Marketplace, or any of its subsidiaries or affiliates or any of their subsidiaries or affiliates (the "Companies"), you may be furnished, from time to time, with certain information about such Assets. All information about any Assets, Companies, and their Representatives, as defined below, whether furnished before or after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter agreement as the "Confidential Material." The term "Confidential Material" will also include all analyses, compilations, studies or other documents prepared by you or your Representatives containing or based in whole or in part on any information furnished by the Companies. For purposes of this letter, the term "Representatives" shall mean any of a Person’s affiliates, directors, partners, officers, employees, attorneys, accountants, agents, advisors or controlling Persons. The term "Confidential Material" does not include, however, information which (a) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives, (b) was available to you on a nonconfidential basis prior to disclosure by us or (c) becomes available to you on a nonconfidential basis from a Person other than the Companies or its Representatives who is not otherwise bound by a confidentiality agreement with the Companies or its Representatives or is not otherwise prohibited from transmitting the information to you. For purposes of this letter, the term "Person" shall be broadly interpreted to include, without limitation, any corporation, company, partnership, individual, or other entity.
You agree that the Confidential Material will not be used by you in any way detrimental to the Companies or their customers, will be kept confidential by you and your Representatives, shall not, except as hereinafter provided, without the prior written consent of the Companies, be disclosed by you or your Representatives, in any manner whatsoever, in whole or in part, to any Person and shall not be used by you or your Representatives other than to evaluate Proposed Transactions.
Moreover, you further agree to transmit Confidential Material only to those of your Representatives who need to know such information for the purpose set forth above and who shall (a) be advised by you of this Agreement and (b) agree with you to be bound by the provisions hereof. You shall be responsible for any breach of this Agreement by your Representatives.
Notwithstanding the foregoing, you may transmit Confidential Information to Persons for whom you are acting as attorney in connection with the purchase of any Assets, provided each such Person (and Representative of such entity) shall be advised by you, and agrees to be bound by the terms, of this Agreement.
Except as required by law, without the prior written consent of the Companies, you will not, and you will direct your Representatives who are given access to the Confidential Material not to, disclose to any Person (other than a Person authorized hereunder) the Confidential Material or the fact that the Confidential Material has been made available to you, that discussions or negotiations between you and the Companies are taking place regarding any Proposed Transaction or any of the terms, conditions or other facts with respect to any Assets. Upon demand you will return to the Companies or destroy all copies of, extracts from, notes concerning, or other evidence of the Confidential Material in whichever form and confirm the same in writing to the Company.
You acknowledge that the Companies may also supply the Confidential Material to other parties for review and evaluation. The Companies have no obligation to negotiate the sale of or to sell any Assets to you. Any such Asset sale would require separate agreement regarding terms and conditions and the execution of a mutually satisfactory Purchase Agreement.
If you or your Representatives are requested, become legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) or are required to disclose any of the Confidential Material or the fact that the Confidential Material has been made available to you, that discussions or negotiations between you and the Companies are taking place or any of the terms, conditions or other facts with respect to the possible sale of Assets, it is agreed that you or your Representatives, as the case may be, will provide the Companies with prompt written notice of such request(s) or requirement so that the Companies may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If such protective order or other remedy is not obtained, or that the Companies waive compliance with the provisions of this Agreement, you agree that you will furnish only that portion of the Confidential Material and such other information which is legally required and will exercise your best efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Material and such other information which is being disclosed.
In addition, you hereby acknowledge that you are aware (and, if applicable, that your Representatives who are apprised of the Confidential Material have been advised) that the United States securities laws prohibit any Person who has material non-public information about a company from purchasing or selling securities of such company.
Although you understand that we will endeavor to include in the Confidential Material information known to us that we believe to be relevant for the purpose of your investigation, you further understand that, except as may otherwise be agreed in writing, we do not make any representation or warranty as to the accuracy or completeness of any Confidential Material. You agree that neither the Companies nor their Representatives shall have any liability to you or any of your Representatives resulting from the use of Confidential Material by you or your Representatives.
It is further understood and agreed that no failure or delay by the Companies in exercising any right, power or privilege hereunder 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 and privilege hereunder. Also, it is agreed that the Companies shall be entitled to their reasonable, out-of-pocket attorneys’ fees and to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement. The provisions of this paragraph hereof shall survive termination. The provisions hereof shall survive a consummation of the sale of any Assets, but only to the extent any of the Confidential Material with respect to such sale is required by law to be kept confidential.
Notwithstanding anything herein to the contrary, any party to this Agreement (and any employee, representative, or other agent of any party to this Agreement) may disclose to any and all Persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of any Proposed Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such U.S. tax treatment and U.S. tax structure; provided, however, that such disclosure may not be made (i) until the earlier of (x) the public announcement of the transaction and (y) the date of the execution of an agreement to enter into the transaction; and (ii) to the extent required to be kept confidential to comply with any applicable federal or state securities laws.
This Agreement will be governed by the internal laws of the State of New York without regard to its conflicts of law rules. In any action arising out of or concerning this Agreement, the parties mutually waive trial by jury and agree that any such action may be brought in the New York State Supreme Court, Suffolk County. If any provision of this Agreement shall be determined to be illegal or unenforceable, such determination shall not affect any other provision of this Agreement, and all other such provisions shall remain in full force and effect.
If you are in agreement with the foregoing, please sign and return one copy of this Agreement, which will constitute our entire agreement with respect to the subject matter hereof. This Agreement may be executed in several counterparts, all of which together shall constitute one and the same agreement.
You hereby represent and warrant that you are not acting in any brokerage or advisory capacity and you are interested in reviewing the Confidential Material solely to determine whether or not to acquire any or all of the Assets as a principal.
Confirmed and Agreed to as of todays date: