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In connection with the consideration of a possible negotiated transaction between you and all entities whose information is available on FNEX and/or one or more of its subsidiaries, affiliates or divisions, (collectively the “Parties"), the Parties hereto contemplate the transfer of certain confidential information. This Agreement is mutually binding upon the Parties as to each provision. Hereinafter, for purposes of this Agreement the term “Company” shall refer to the party furnishing certain confidential information and “you” shall refer to the party that received or will receive from the Company certain confidential information.
As a condition of being furnished that information, you shall treat any and all information concerning the Company (whether prepared by the Company, its advisors or otherwise, and whether written or oral) which has been or will be furnished to you by or on behalf of the Company or any affiliate thereof whether in writing or oral, or whether received directly or indirectly, (collectively "Confidential Information") in accordance with the provisions of this confidentiality agreement and shall take or abstain from taking certain other actions herein set forth. The term "Confidential Information" does not include information which (i) is already in your possession (other than information previously furnished to you by the Company or any affiliate thereof), provided that such information is not known by you to be subject to another confidentiality agreement with or other obligation of secrecy to the Company, or (ii) becomes generally available to the public other than as a result of a disclosure by you or your directors, officers, employees, agents or advisors, representatives, lenders and others associated with you (collectively "Representatives"), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with or other obligation of secrecy to the Company, or (iv) is independently developed by you. Confidential Information shall not be deemed to be generally available to the public or in the public domain merely because any part of any Confidential Information is embodied in general disclosures or because individual features, components, or combinations thereof are now known or become known to the public.
Without limitation, the term "Confidential Information" includes (i) financial statements, financial data and financial information regarding the Company, its financial conditions and the results of its operations, (ii) Company’s materials, reports, plans, analyses, financial projections, documents, drawings, machines, writings, samples, studies, compilations, tools, models, devices, business plans, strategies, customer information, marketing and proposal information, financial and rate information, personal information, and the terms and provisions of the Company's leases, (iii) the tax returns of the Company, and (iv) all analyses, compilations, excerpts, forecasts, summaries, studies, or other documents prepared by you or your Representatives which contain or relate to information about the Company and/or your interest in the Company.
You hereby confirm that you are aware that the Confidential Information is confidential and you shall respect its confidential nature, hold the Confidential Information in trust, and take normal and reasonable precautions to maintain such confidentiality so that none of the Confidential Information, except as otherwise provided herein, will be divulged to any other party.
You hereby agree that the Confidential Information shall be used solely for the purpose of evaluating a possible negotiated transaction with the Company and not used in any manner detrimental to Company and that such information will be kept confidential by you; provided, however, that (i) any of such information may be disclosed to your directors, officers and employees to the extent they need to know such information for the purpose of evaluating the proposed transaction (it being understood that such directors, officers and employees shall be informed by you of the confidential nature of such information and shall be directed by you to treat such information confidentially in accordance with the terms of this confidentiality agreement) and you shall require them to agree to act in accordance with the terms and conditions of this agreement, and (ii) any other disclosure of such information may be made to which the Company consents in writing. Upon request by Company, you agree you will advise Company in writing within a reasonable time of all persons who have been given access to or knowledge of Confidential Information of any kind. You agree you will not disclose the existence of your discussions with Company of a possible negotiated transaction without Company’s express written consent to such disclosure. You agree you will not discuss with or offer to any third party a participation in the possible negotiated transaction. You agree you will not directly or indirectly contact or communicate with any executive or employee of Company, any customer of Company, or any vendor of Company, without in each such instance the express
advance written consent of Company, which Company may grant or withhold in its sole discretion. You agree you will not hire or solicit for employment any key employee of Company for a period of one (1) year.
You hereby acknowledge that you are aware, and that you will advise such directors, officers and employees who are informed as to the matters which are the subject of this confidentiality agreement, that the United States securities laws and regulations prohibit any person who has received from an issuer material, non-public information concerning such issuer from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
If you receive a request to disclose or are required to disclose all or any part of the information contained in the Confidential Information (by oral questions, interrogatories, requests for information or other documentary subpoena, civil investigative demand or other processes), you shall, to the extent permitted by law (i) immediately notify the Company of the existence, terms and circumstances surrounding such a request or requirement, (ii) consult with the Company on the advisability of taking legally available steps to resist or narrow such request, and if requested by Company, resist such disclosure or portions thereof at Company's expense and under Company's direction, and (iii) if disclosure of such information is required, exercise your best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed information which the Company so designates.
You understand that neither the Company nor any of its directors, officers, employees, representatives or advisors has made or makes any representation or warranty as to the accuracy or completeness of the Confidential Information, however, Company will use reasonable efforts to provide accurate and complete Confidential Information. You agree that neither the Company nor any of its directors, officers, employees, representatives, or advisors shall have any liability to you or any of your representatives or advisors resulting from the use of the Confidential Information.
Without Company's prior written consent, you will not and you will direct your Representatives not to disclose to any person, including without limitation any employee, customer, landlord, potential customer or other person having business dealings with Company of either the fact that any investigations, discussions, or negotiations are or may take place concerning a possible transaction between you and Company or that you have requested or received Confidential Information from Company or any of the terms, conditions or other facts with respect to any possible transaction, including the status thereof. The term "person" as used in this agreement shall be interpreted broadly to include, without limitation, any corporation, company, partnership, limited liability company, individual or other entity. It is agreed that (i) all communications regarding a possible transaction, (ii) all requests for additional information regarding Company, (iii) all requests for facility tours and (iv) all discussions or questions regarding Company or procedures will be submitted or directed in a confidential fashion to the Company’s Chief Executive Officer.
If you elect not to submit or enter into a negotiated transaction with Company, Company elects not to submit or enter into a negotiated transaction with you, or otherwise, upon request to Company, you shall promptly redeliver to Company all written Confidential Information (whether prepared by Company, its advisors, or otherwise) and you will not retain any copies, extracts or other reproductions in whole or in part of such written materials. Also, all documents, memoranda, notes and other writings whatsoever prepared by you or your advisors based on the information in the Confidential Information shall be destroyed, and such destruction shall be certified in writing to Company by an authorized officer supervising such destruction.
Company may terminate access to you and your Representatives to the Confidential Information at any time. Company has no duty or obligation to provide information, whether Confidential Information or otherwise, to you. Company has no duty to negotiate with you, may terminate negotiations with you at any time, and may negotiate with others. This agreement contains the entire understanding between the parties with respect to the matters contemplated by this agreement and supersedes all prior written or oral communications, negotiations, understandings or agreement of any kind with respect to such matters. No amendment or modification of this agreement shall be effective unless made or agreed to in writing. This agreement shall be binding upon the parties and the Representatives and their respective successors and assigns and shall inure to the benefit of the parties and their respective successors and assigns. The person executing this confidentiality agreement on your behalf hereby represents and warrants that they are authorized and duly empowered to execute this confidentiality agreement and bind you. If any provision set forth in this agreement relative to your being furnished with Confidential Information is deemed not enforceable in whole or in part, the remaining provisions set forth in this agreement shall be enforceable notwithstanding the validity or invalidity of any other provisions. Any provision not enforceable in part shall be enforced to the extent valid and enforceable. No failure or delay by Company in exercising any right, power or privilege under this agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege under this agreement.
You agree that Company shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this confidentiality agreement, in addition to all other remedies available to Company at law or in equity. You also agree that you will pay all costs and reasonable attorneys' fees incurred by Company in the event of your breach or threatened breach of this confidentiality agreement.
Your obligations under this confidentiality agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana applicable to contracts made and to be wholly performed in Indiana. This confidentiality agreement and Your obligations hereunder shall terminate two years after the date hereof.