EXHIBIT (C)(1)
Xxxxxx Xxxxxxxxx Xxxxxx & Co.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Confidentiality Agreement
Ladies and Gentlemen:
We have requested Evaluation Material (as defined below) concerning the business
and affairs of National Picture & Frame Company and its subsidiaries
(collectively, the "Company").
The term "Evaluation Material" includes information (written or oral) furnished
to us or our Representatives (as defined below) by the Company or its
Representatives, and information, analyses, summaries and other work product
derived by us from such information, but does not include information which (i)
was or becomes generally available to the public other than as a result of a
disclosure by us or our Representatives, or (ii) was or becomes available to us
on a nonconfidential basis from a source other than the Company or its
Representatives, provided that such source is not bound by a confidentiality
obligation to the Company.
The term "Representatives" means any party's directors, officers, stockholders,
partners, affiliates, employees, agents, and advisors.
As a condition to you or the Company Furnishing us with any Evaluation Material,
we agree as follows:
(1) We recognize and acknowledge the competitive value and
confidential nature of the Evaluation Material and the damage that could
result to the Company if information contained therein is disclosed to
any third party. The Evaluation Material will not be used by us or our
Representatives in any way detrimental to the Company, including,
without limitation, in competition with the Company.
(2) We agree that the Evaluation Material will be used solely for
the purpose of evaluating a possible purchase by us of the Company. We
also agree that we will keep the Evaluation Material confidential and
will not disclose any of the Evaluation Material now or hereafter
received or obtained from the Company or any of its Representatives to
any third party, without the prior written consent of the Company;
provided, however, that any of the Evaluation Material may be disclosed
(a) to the extent required by applicable law or legal process in
compliance with paragraph (7) hereof or (b) to our Representatives who
need to know the information contained in the Evaluation Material for
the purpose of evaluating the above-described possible transaction with
the Company and who agree to keep such information confidential and to
be bound by this Agreement to the same extent as if they were parties
hereto (it being understood and agreed that our Representatives
shall be informed by us of the confidential nature of the Evaluation
Material and shall be directed by us to treat the Evaluation Material
confidentially). In any event, we shall be responsible for any improper
use of the Evaluation Material by our Representatives.
(3) In addition, without prior written consent of the Company, we will
not disclose to any person (which includes, without limitation, any
corporation, company, partnership, individual, group, or trust),
including another possible bidder for the Company, (a) the Evaluation
Material has been made available to us, (b) that we have inspected any
portion thereof, (c) that discussions or negotiations are taking place
concerning a possible transaction with the Company, or (d) any of the
terms, conditions or other facts with respect to any such possible
transaction, including the status thereof.
(4) In the event that the transaction contemplated by this Agreement
is not consummated, or upon your or the Company's request, all
Evaluation Material supplied by the Company or its Representatives (and
all copies, extracts or other reproductions in whole or in part thereof)
shall be returned to the Company or (with the Company's written
permission) destroyed and not retained by us or our Representatives in
any form or for any reason. This includes all documents, memoranda,
notes, and other writings whatsoever prepared by us or our
Representatives based on the Evaluation Material.
(5) We understand that the Company has publicly traded securities
outstanding and is subject to the reporting and other requirements of
the Securities Exchange Act of 1934, as amended. The Evaluation
Material (or portions thereof) constitute material information regarding
the Company which has not been disclosed to the public. Therefore, for
so long as we are in possession of such information, we shall not,
without the Company's permission, purchase or sell any equity or debt
security issued by the Company until all such information is disclosed
to the public (other than as a result of our breach of this Agreement).
(6) Neither the Company nor its Representatives make any
representations or warranties as to the accuracy or completeness of the
Evaluation Material. Any representations or warranties with respect to
the Company will be contained only in a definitive agreement, if any,
between the Company and a purchaser of the Company. The Company and its
Representatives expect that we will conduct our own independent
investigation and analysis. We agree that neither the Company nor any
of its Representatives shall have any liabilities to us resulting from
the use of the Evaluation Material supplied by the Company or any of its
Representatives.
(7) Notwithstanding anything to the contrary set forth herein, in
the event that we or any of our Representatives are requested or
become legally compelled (by oral questions, interrogatories, request
for information or documents, subpoena, civil investigative demand or
similar process) to disclose any of the Evaluation Material or take any
other action prohibited hereby, we will provide the Company with prompt
written notice so that the
Company may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Agreement. In the event
that such protective order or other remedy is not obtained, or that the
Company waives compliance with provisions of this Agreement, we will
furnish only that portion of the Evaluation Material or take only such
action as is legally required by binding order and will exercise our
best efforts to obtain reliable assurance that confidential treatment
will be accorded any Evaluation Material so furnished.
(8) Until the third anniversary of the date of this Agreement, we
shall not (a) induce or attempt to induce any employee of the Company to
leave his or her employ or in any way interfere with the relationship
between the Company and any of its employees, (b) hire any person who
was an employee of the Company as of the date of this Agreement, or (c)
induce or attempt to induce any business relation of the Company to
cease doing business with the Company or in any way interfere with the
relationship between the Company and any such business relation.
(9) This Agreement shall be binding on and inure to the benefit of
the parties hereto and their respective successors and assigns. It is
understood that the Company may institute appropriate proceedings
against us to enforce its rights hereunder, that money damages would not
be a sufficient remedy for any violation of the terms of this Agreement,
that the Company shall accordingly be entitled to specific performance
and injunctive relief as remedies for any violation, and that these
remedies shall not be deemed to be the exclusive remedies for a
violation of the terms of this Agreement, but shall be in addition to
all other remedies available to the Company at law or in equity. This
Agreement shall be governed and construed in accordance with the laws of
the State of Mississippi without giving effect to the conflicts of law
provisions thereof. We hereby irrevocably submit to the exclusive
jurisdiction of any State or Federal court located in Mississippi over
any action or proceeding to enforce or defend any right under this
Agreement and agree not to file any suit or proceeding anywhere else. If
any portion of this Agreement shall be declared invalid or
unenforceable, the remainder of this Agreement shall be unaffected
thereby and shall remain in full force and effect.
(10) The terms of this Agreement shall expire three years from the
date hereof.
Accepted and Agreed
Colonnade Capital LLC
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By: /s/ XXXX X. XXXXXX
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Its: Managing Partner
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Date:8/12/1996
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