CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement, dated as of February 29, 1996, is
made by XXXX-XXXXX COMPANY, ("Xxxx-Xxxxx") in favor of SUPER FOOD SERVICES,
INC. (the "Company").
1. For purposes of this Agreement, the term "Confidential Information"
shall mean the non-public written information regarding the Company delivered
to Xxxx-Xxxxx in connection with Xxxx-Xxxxx'x evaluation of a potential
acquisition of the Company.
2. Xxxx-Xxxxx agrees to hold such Confidential Information in confidence
to the same extent it safeguards its own confidential information of similar
character for a period of two (2) years from the date of this Agreement.
Xxxx-Xxxxx agrees that it shall not disclose any such Confidential
Information to anyone except its employees, agents, or affiliates to whom
disclosure is necessary for the purpose of evaluating such information
(collectively "Advisors"). Xxxx-Xxxxx shall appropriately notify such
Advisors that the disclosure is made in confidence and shall be kept in
confidence in accordance with this Agreement.
3. Upon the request of the disclosing party, all Confidential
Information, together with any copies of same as may be authorized herein,
shall be returned to the Company or certified destroyed by Xxxx-Xxxxx.
4. Xxxx-Xxxxx'x obligation of confidentiality contained in this Agreement
shall not apply to any information which: (a) is received from a third party
that is not known to Xxxx-Xxxxx to be bound by a confidentiality agreement
with the Company; (b) prior to the date hereof or the time of disclosure to
Xxxx-Xxxxx was in its possession; (c) is or hereafter becomes public
knowledge through no fault of Xxxx-Xxxxx; or (d) is required to be
disclosed pursuant to any law or any governmental regulation or order.
5. Except for the obligation of confidentiality imposed herein, no
obligation of any kind is assumed or implied against either party by virtue
of this agreement, any meetings or conversations with respect to the subject
matter stated above or with respect to whatever confidential information is
exchanged. Each party further acknowledges that neither this Agreement nor any
meetings and communications of the parties relating to the same subject
matter shall (i) constitute an offer, request, or contract with the other
involving a buyer-seller relationship, joint-venture, alliance, investment
tor partnership relationship,
or (ii) restrict the right of Xxxx-Xxxxx to make any market entry into the
Company's market area or to compete, directly or indirectly, with the Company
so long as the confidentiality provisions of this Agreement are followed.
6. The parties expressly agree that any money, expenses or losses
expended or incurred by either parity in preparation for, or as result of
this Agreement or the parties' meetings and communications, is at such party's
sole cost and expense.
7. Without the prior consent of the other party, neither party shall
disclose to any third person (other than their Advisors) the fact that
discussions are taking place or that Confidential Information is being
shared, except as may be required by law and then only after first notifying
the other party of such required disclosure.
8. Although the Company has endeavored to include in the Confidential
Information all information known to it which it believes to be relevant for
the purpose of Xxxx-Xxxxx'x investigation, Xxxx-Xxxxx understands that
neither the Company nor any of its representatives or advisors have made or
make any representation or warranty as to the accuracy or completeness
of the Confidential Information. Xxxx-Xxxxx agrees that neither the Company
nor its representatives or advisors shall have any liability to Xxxx-Xxxxx
or any of Xxxx-Xxxxx'x representatives or advisors resulting from the use of
the Confidential Information.
9. This Agreement constitutes the entire agreement between the Company and
Xxxx-Xxxxx with respect to the subject matter of this Agreement. No provision
of this Agreement shall be deemed waived, amended or modified by either
party, unless such waiver, amendment or modification is made in writing and
signed by the party alleged to be bound thereby. This Agreement supersedes
all previous agreements between the Company and Xxxx-Xxxxx related to the
subject matter hereof.
10. Xxxx-Xxxxx agrees that for a period of two (2) years from the date of
this Agreement, neither it nor its affiliates (as defined in Rule 12b-2 under
the Securities and Exchange Act of 1934, as amended), will in any manner
acquire or make any proposal to acquire any securities or property of the
Company (other than property transferred in the ordinary course of the
Company's business), unless such acquisition or the making of such proposal
has been approved in advance by the Company's Board of Directors.
11. This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware. This Agreement shall be binding upon Xxxx-Xxxxx,
its successors and
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assigns and shall inure to the benefit of and be enforceable by the Company,
its successors and assigns.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to sign this Agreement as of the date set forth below.
SUPER FOOD SERVICES, INC., XXXX-XXXXX COMPANY,
a Delaware corporation a Delaware corporation
By: XXXX XXXXX By: XXXXXX X. XXXXXX
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