Exhibit 10.2
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement"), dated as of
the 13th day of October, 2008 (the "Effective Date"), is by and between
Xxxxx'x Liquid Gold-Inc. ("Issuer"), a Colorado corporation, and Value
Fund Advisors, LLC, an Oklahoma limited liability company (the
"Recipient").
The Issuer proposes to engage in discussions with Recipient
regarding information respecting the Issuer which may not have been
disclosed to Issuer's shareholders generally. To comply with Securities
and Exchange Commission regulations governing fair disclosure and to
allow Recipient to have an observer at meetings of Issuer's Board of
Directors, Recipient, intending to be legally bound, hereby covenants
and agrees with the Issuer as follows:
1. The term "Proprietary Information" as used herein means
any information regarding the Issuer and its subsidiaries and/or
affiliates (specifically including, but not limited to, customer and
employee information, business methods, and general operations and
events) obtained by Recipient from or through the Issuer, but does not
include information which (i) becomes generally available to the public
other than as a result of a disclosure by Recipient or its
representatives; (ii) was within Recipient's possession prior to its
being furnished to Recipient by or on behalf of the Issuer pursuant
hereto, provided that the source of such information was not known to
Recipient to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the
Issuer or any other party with respect to such information; (iii) became
available to Recipient on a non-confidential basis from a source other
than the Issuer, provided such source is not bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Issuer or any other party with respect to such
information; or (iv) was independently developed by Recipient without
reference to the proprietary information, provided such independent
development can reasonably be proven by Recipient by written records.
2. Recipient hereby agrees it shall not buy or sell Issuer
stock (or any direct or indirect interest in Issuer's stock), or advise
any of its affiliates to buy or sell stock (or any direct or indirect
interest in Issuer's stock), while aware of Proprietary Information that
might be considered material under securities laws and which has not
been disclosed to the public. Recipient agrees that it shall not,
directly or indirectly, disclose, sell, give, or otherwise transfer or
make available Proprietary Information to any third party, including
any of Recipient's affiliates, except as required by law or as provided
in paragraph 4 herein. Recipient shall use Proprietary Information
only for the purpose of providing comments to Issuer, having an observer
at meetings of Issuer's Board meetings, and considering the investment
of Recipient or its affiliates in Issuer (excluding in any event
transactions prohibited by this paragraph 2).
Recipient hereby agrees to restrict disclosure or use of
Proprietary Information to only those of its employees who are directly
involved in performing its obligations under this Agreement, shall
restrict use of Proprietary Information by such employees to the purposes
expressly set forth in this Agreement and shall cause any such employees
to comply with the obligations of Recipient herein.
Upon termination of this Agreement or Recipient's ceasing to have
an observer at meetings of the Board of Directors of Issuer, whichever
is earlier, Recipient shall return to Issuer or destroy any Proprietary
Information, including all reproductions made thereof, if any.
Recipient shall in no event retain Proprietary Information in any form,
except that which is reasonably necessary for tax, audit or legal
requirements.
3. Recipient acknowledges and agrees that the Proprietary
Information is entrusted to Recipient after being informed of its
confidential and secret status by the Issuer, has been developed by the
Issuer for and on behalf of the Issuer through substantial expenditures
of time, effort and money and is used in its business, and is of such
value and nature as to make it reasonable and necessary to protect and
preserve the confidentiality and secrecy of the Proprietary Information.
Further, Recipient acknowledges that the disclosure of the Proprietary
Information could cause substantial injury and loss of profits and
goodwill to the Issuer as well as be a violation of state, federal and
local laws, rules and regulations.
4. Recipient may disclose the Proprietary Information to its
attorneys, advisors, representatives (collectively, the "Representatives")
who need to know such information for the purposes of assisting Recipient
in its analysis of the Proprietary Information (it being understood that
(a) each such Representative shall be informed by the Recipient of the
confidential nature of the Proprietary Information, shall receive a copy
of this Agreement and shall be directed by Recipient to not use or
disclose the Proprietary Information and (b) in any event, the Recipient
shall be responsible for any breach of this Agreement by the
Representatives). All files, records, documents, information, data and
similar items relating to the Proprietary Information, whether prepared
by Recipient or otherwise coming into Recipient's possession, shall
remain the exclusive property of the Issuer.
5. If Recipient is requested in any legal proceeding to disclose
any Proprietary Information, it will give the Issuer prompt notice of
such request so that the Issuer may seek an appropriate protective order.
If, in the absence of a protective order, Recipient is nonetheless
compelled to disclose Proprietary Information, by a court or governmental
body having the apparent authority to order such disclosure, it may
disclose the Proprietary Information without liability hereunder;
provided however, that Recipient gives the Issuer written notice of the
Proprietary Information to be disclosed as far in advance of its
disclosure as is practicable and, at the Issuer's request, Recipient
uses its best efforts to obtain assurances that confidential treatment
will be accorded to the Proprietary Information.
6. Recipient recognizes and acknowledges that the ascertainment
of damages in the event of its breach of any provision of this Agreement
would be difficult, and Recipient agrees that the Issuer, in addition to
all other remedies it may have, shall have the right to injunctive
relief if there is such a breach.
7. This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns. This
is not a third party beneficiary contract. No person or entity other
than a party signing this Agreement shall have any rights under this
Agreement.
8. No modification or amendment of this Agreement or any waiver
of any provision hereof shall be of any force or effect except by a
written document signed by both parties which specifically references
this Agreement.
9. This Agreement shall be subject to, and interpreted by and
in accordance with, the laws (excluding conflict of law provisions) of
the State of Colorado. Any cause of action for a breach or enforcement
of, or a declaratory judgment respecting, this Agreement may be
commenced and maintained in the United States District Court for the
Northern District of Oklahoma or for the District of Colorado, the
applicable Oklahoma state trial court sitting in Tulsa, Oklahoma and
having subject matter jurisdiction or the applicable Colorado State
trial court sitting in Denver, Colorado and having subject matter
jurisdiction. Each of the parties consents to the jurisdictions of
such courts (and of the appropriate appellate courts) in any action or
proceeding concerning this Agreement and waives any objections to such
venues. Process in any action or proceeding referred to in this
paragraph may be served on any party anywhere in the world.
10. This Agreement is the entire Agreement of the parties
respecting the subject matter hereof. There are no other agreements,
representations or warranties, whether oral or written, respecting the
subject matter hereof. No course of prior dealings involving any of
the parties hereto and no usage of trade shall be relevant or advisable
to interpret, supplement, explain or vary any of the terms of this
Agreement, except as expressly provided herein. This Agreement, and all
the provisions of this Agreement, shall be deemed drafted by all of the
parties hereto. This Agreement shall not be interpreted strictly for or
against any party, but solely in accordance with the fair meaning of the
provisions hereof to effectuate the purposes and intent of this Agreement.
11. This Agreement shall come into effect on the Effective Date
and shall continue in full force and effect while Recipient has any
observer in regard to the Board of Directors of Issuer and for a period
of two years thereafter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
"ISSUER"
By: /s/ Xxxx Xxxxxxxxx
Printed Name: Xxxx Xxxxxxxxx
Title: President/CEO
Date: October 13, 2008
"RECIPIENT"
By: /s/ Xxxxxxx X. Xxxxxxx
Printed Name: Xxxxxxx Xxxxxxx
Title: Managing Member
Date: October 13, 2008
