CONFIDENTIALITY LETTER AND AGREEMENT
Personal and Confidential
To Whom It May Concern:
In connection with the consideration of a possible transaction with KEN ROYS of BTF MANAGEMENT CONSULTANTS INC. and Mr. AAAA BBBBB of XYZ CORPORATION INC. (the “Company”), BTF has requested information concerning the Company. As a condition to BTF being furnished such information, BTF agrees to treat any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to BTF by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” does not include information which (I) is already in the possession of BTF, provided that such information is not known by BTF to be subject to another confidentiality agreement with or other obligation of secrecy to the Company or another party, or (II) becomes generally available to the public other than as a result of a disclosure by BTF or the Company directors, officers, employees, agents or advisors, or (III) becomes available to BTF on a non-confidential basis from a source other than the Company or its advisors, provided that such source is not known by BTF to be bound by a confidentiality agreement with or other obligation of secrecy to the Company or another party.
BTF hereby agrees that the Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Company and BTF, and that such information will be kept confidential by BTF and BTF advisors; provided, however, that (I) any of such information may be disclosed to the Company directors, officers and employees and representatives of the Company advisors who need to know such information for the purpose of evaluating any such possible transaction between the Company and BTF (it being understood that such directors, officers, employees and representatives shall be informed by BTF of the confidential natural of such information and shall be directed by BTF to treat such information confidentially), and (II) any disclosure of such information may be made to which the Company consents in writing.
BTF hereby acknowledge that BTF is aware, and that BTF will advise such directors, officers, employees and representatives who are informed as to the matters which are the subject of this letter, that the United States securities laws prohibit any person who has received from an issuer this material, non-public information concerning the matters which are the subject of this letter from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonable foreseeable that such person is likely to purchase or sell such securities.
In addition, without the prior written consent of the Company, BTF will not, and will direct such directors, officers, employees and representatives not to, disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between the Company and BTF or any of the terms, conditions or other facts with respect to any such possible transaction, including the status thereof.
BTF hereby acknowledges that the Evaluation Material is being furnished to BTF in consideration of the Company agreement that BTF will not propose to the Company or any other person any transaction between BTF and the Company and/or its security holders or involving any of its securities or security holders unless the Company shall have requested that BTF make such a proposal, and that BTF will not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, control of the Company or any of the Company’s securities, businesses or assets unless the Company shall have consented in advance in writing to such acquisition. BTF also agrees that the Company shall be entitled to equitable relief, including injunction, in the event of any breach of the provisions of this paragraph and that BTF shall not oppose the granting of such relief.
In consideration of the Evaluation Material being furnished to BTF, BTF hereby agrees that, for a period of three years from the date hereof, neither BTF nor any of the Company affiliates will solicit to employ any of the current officers or employees of the Company with whom BTF has had contact or who was specially identified to BTF during the period of investigation of the Company, so long as they are employed by the Company, without obtaining the prior written consent of the Company.
Although the Company has endeavored to include in the Evaluation Material information known to it, which it believes to be relevant for the purpose of the investigation, BTF understands that neither the Company nor any of its representatives or advisors have made or make any representation or warranty as to the accuracy of completeness of the Evaluation Material. BTF agrees that neither the Company nor its representatives or advisors shall have any liability to BTF or any of the Company representatives or advisors resulting from the use of the Evaluation Material.
In the event that BTF does not proceed with the transaction which is the subject of this letter within a reasonable time, BTF shall promptly redeliver to the Company all written Evaluation Material and any other written material containing or reflecting any information in the Evaluation Material (whether prepared by the Company, its advisors or otherwise) and will not retain any copies, extracts or other reproductions in whole or in part of such written material. All documents, memoranda, notes and other writings whatsoever prepared by BTF or the Company advisors based on the information in the Evaluation Material shall be destroyed, and such destruction shall be certified in writing to the company by an authorized officer supervising such destruction.
BTF agrees that this Evaluation Material will not be used to a competitive advantage against the Company and that BTF will not disclose this information to a competitor of the Company or to any company in a related industry.
BTF agrees that unless and until a definitive agreement between the Company and BTF with respect to any transaction referred to in the first paragraph of this letter has been executed and delivered, neither the Company nor BTF will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this or any written or oral expression with respect to such a transaction by any of its directors, officers, employees, agents or any other representatives or its advisors or representatives thereof except, in the case of this letter, for the matters specifically agreed to herein. The agreement set forth in the paragraph may be modified or waived only by a separate writing by the Company and BTF expressly so modifying or waiving such agreement.
This letter shall be governed by,
and construed in accordance with, the laws
Very truly yours,
BTF MANAGEMENT CONSULTANTS INC.
713-849-2300
Ken.Roys@BTFmanagement.com
WWW.BTFmanagement.com
By: Date:
Authorized BTF Officer
Confirmed and Agreed to:
By: Date:
Authorized Company Officer