Specialty Motor Carrier Business

NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT

Agreement is made and entered into this day by and between TS- NHBS, Inc. dba NEW HAMPSHIRE BUSINESS SALES, a New Hampshire business corporation headquartered at 20 Foundry Street, Concord, NH (“Intermediary” or “TS-NHBS”), and the undersigned. Now therefore, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

1. RECITALS: TS-NHBS agrees to provide to Undersigned certain confidential and proprietary information and materials as further defined below relating to certain companies offered for sale by TS-NHBS, Inc. and Undersigned covenants that it will inspect and hold such Information in the strictest confidence, subject to the terms of this Agreement.
2. CONFIDENTIAL INFORMATION. Confidential Information includes by way of example, but not limitation, any/all financial information, business plans, marketing plans, data, and other information submitted, orally, in writing, or by any other media, to Undersigned or Undersigned’s representatives by Company or TS-NHBS (“Confidential Information”). However, Confidential Information excludes information which: (a) was in Undersigned’s possession before receipt from Company or TS-NHBS, as evidenced by written records; (b) is or becomes a matter of public knowledge through no fault of Undersigned, its affiliates, subsidiaries, parent companies, or Undersigned’s officers, controlling shareholders, members, partners, or trustees; (c) is rightfully received by Undersigned from a third party without a duty of confidentiality on the third party; (d) provided, however, that the exceptions set forth in clauses (a), (b), (c) do not apply to employment applicant, employee or customer information, which is protected by state and federal laws. Information which is furnished by Intermediary, or by Company, to Undersigned, or its agents, is strictly confidential, may be used only in connection with investigation of the Company for its purpose for engaging Intermediary, and may not be disseminated to any party other than Company’s designated officers or Agents. Under no circumstance shall Undersigned or its Agents reveal any Confidential Information, or the basis for receiving such information, to any employee, officer, or agent of the Company who is not expressly authorized herein, or in a separate written authorization from Company or Intermediary.
3. AUTHORIZED THIRD PARTIES. Notwithstanding the confidentiality and non-disclosure provisions above, Undersigned may furnish the Confidential Information to Undersigned’s attorneys, accountants, or other professional advisors, along with potential partners, investors, provided, however, that all such parties shall certify to Undersigned in writing that they are bound by the terms of this Agreement and ratify the substance hereof.
4. FIDUCIARY RELATIONSHIP. Undersigned certifies that it understands Intermediary is an agent of, owes a fiduciary duty to the Company, and is acting solely in the interest of the Company.
5. ACCURACY OF CONFIDENTIAL INFORMATION. Intermediary is providing Confidential Information at the request of Company on the express condition that Intermediary makes no representations or affirmative warranties as to the validity or veracity of the Confidential Information so provided. Notwithstanding the preceding disclaimer, TS-NHBS certifies that it has no actual knowledge of any false information contained within the Confidential Information.
6. NOTICE OF DEMAND FOR DISCLOSURE. In the event that Undersigned is required by law, or requested by a court, administrative body, or any third party whatsoever, to disclose any Confidential Information, Undersigned agrees to give both Intermediary and Company three business days written notice prior to disclosing the demanded Confidential Information, such that Company or Intermediary may seek a protective order or other appropriate relief.
7. RETURN OF CONFIDENTIAL INFORMATION. Upon written request by Company or TS-NHBS, the Undersigned shall return to Intermediary all Confidential Information, and to the extent such Confidential Information cannot be returned, it shall be destroyed and forever removed and deleted from all storage medium wherever located.
8. ONGOING DUTY OF CONFIDENTIALITY. To the extent that certain Confidential Information is known to Undersigned, and to the extent its Agents, officers, shareholders, members, partners, or trustees retain such Confidential Information, and said Confidential Information, or any conclusions or further data based on the Confidential Information, cannot be destroyed or returned, Undersigned covenants that it shall abide by the ongoing duty to hold Confidential Information in strict confidence under this Agreement the sooner of the following occurs: (a) Company authorizes in writing disclosure of the Confidential Information; (b) the Confidential Information meets the standard set forth in sub-sections (a)-(c) in Section 2 above; (c) the Undersigned acquires all ownership interests, or all, or substantially all, of the assets of the Company.
9. UNAUTHORIZED DISCLOSURE. Undersigned acknowledges that any breach of the provisions of this Agreement is likely to result in serious and irreparable injury to Company and to Intermediary that cannot be adequately compensated by money damages alone. Undersigned therefore agrees that Company and/or Intermediary is entitled to specific performance of this Agreement and to seek both temporary and permanent injunctive relief, to the extent permitted by law, without proving actual damages.
10. MISCELLANEOUS. This agreement shall bind and inure to the benefit of, or burden to any of the parties hereto. All covenants, duties, or representations of the Undersigned shall survive termination of this Agreement. The invalidity or unenforceability of any term, phrase, clause, paragraph, restriction, covenant, agreement, or any other provision shall not affect the validity or enforceability of any other provision, or any part thereof. All agreements between the parties hereto are merged herein, and this agreement embodies all oral or other undertakings between the parties hereto regarding confidentiality of Confidential Information provided hereunder. Headings are for purposes of reference only and shall not limit or otherwise affect the substance of any section. The parties covenant that they have had adequate opportunity to seek independent, professional counsel prior to executing this agreement.