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1. Purpose

The parties to this Agreement desire to engage in discussions regarding present and/or potential future business relationships in connection with a client transaction identified by the Company on Exhibit A attached hereto, which shall be populated immediately upon execution hereof and from time to time thereafter by mutual written consent of the Company and Confidant (the “Potential Transaction(s)”).  This Agreement combines a non-disclosure and a non-circumvention agreement.  The parties intend to engage in substantive discussions and sharing of confidential information regarding the Potential Transaction and in connection with these discussions, it may be necessary and/or desirable for the Company to provide the Confidant with, or allow access to, proprietary, technical, or business data, and/or other confidential information of the Company and its client (collectively the “Confidential Information”).  Therefore, the Confidant, individually and on behalf of those they represent, agrees that they are under an obligation of confidentiality.  The Company believes, and the Confidant hereby agrees, that the Company’s Confidential Information has significant commercial value that would be diminished by unauthorized disclosure.  Accordingly, the commitments of confidentiality in this Agreement are a condition to the Confidant’s willingness to engage in the contemplated business discussions and planning.  The Confidant agrees that it shall not use any Confidential Information except for the explicit purpose of participating in the Potential Transaction, unless the same is done pursuant to a new agreement with all other signatories to this document.  Each signing party shall be held responsible and liable in case of a breach of this Agreement by its principals, representatives or agents.

2. Confidential Information

Confidential Information may be conveyed by the Company to the Confidant orally, in writing, by demonstration, or by other media and Confidential Information shall be considered as such at the time of transmittal regardless of method of conveyance.  Confidential Information may include, by way of example but without limitation, identification of the Company’s clients, identification of the Company’s clients’ business plans and acquisition candidates, financial information of any such party, data, and other non-public information relating to potential parties to the proposed client transaction(s).  Confidential Information shall not include information, which can be clearly demonstrated to be: Generally known or available to the public, through no act or omission on the part of the receiving party; or

a. Generally known or available to the public, through no act or omission on the part of the receiving party; or

b. Provided to the receiving party by a third party without any restriction on disclosure and without any breach of any obligation of confidentiality to a party to this Agreement;

c. Independently developed by the receiving party without use of the Confidential Information; or

d. Already in the receiving party’s possession prior to disclosure by or on behalf of the disclosing party in connection with the potential transaction.

3. Obligation of Confidentiality

The Confidant agrees that when receipt of any Confidential Information has occurred:

a. The Confidant shall not disclose or communicate Confidential Information to any third party, except as herein provided. Confidant shall protect such information from disclosure by reasonable means, including but not limited to at least the same minimal level of security that Confidant uses for its most crucial proprietary and trade secret information.

b. Confidant shall reasonably protect the Confidential Information with not less than the same degree of care exercised by its own personnel to protect its own, or publication of its own, most valuable confidential and proprietary information.

c. The Company shall permit access to its Confidential Information to the Confidant’s agents or employees or third parties only if such disclosure is reasonably believed to be necessary to the purposes of the Confidant evaluating, contemplating, recommending, or engaging in any program or service offered by the Company or for the purpose of entering into a business relationship with the Company, and only if said agents, employees, or third parties:

1. Reasonably require access to the confidential Information for purposes approved by this Agreement, and

2. Have been apprised of this Agreement and the Confidant’s obligations to maintain the status of the Confidential Information and to restrict its use as provided by this Agreement.

 

303. Required Disclosures.

In the event that the Confidant is requested or required to disclose any of the Confidential Information in connection with a legal proceeding (including by oral questions, interrogatories, requests for information or documents in such proceedings, subpoena, civil investigative demand or other similar process) or by applicable law or regulation or court or governmental order, the Confidant may, without liability hereunder, disclose such Confidential Information that the Confidant is advised by counsel is legally required to be disclosed.  Additionally, notwithstanding anything to the contrary herein, Confidant may disclose Confidential Information to banking regulators to whom Confidant and its affiliated Broker Dealer are subject without notice to or consent from the Company.

303. Non-Circumvention

The Confidant hereby agrees for itself, its officers, directors, agents, associates and any related parties, that they will not, directly or indirectly, contact deal with or otherwise become involved with any entity or any other entities or parties introduced, directly or indirectly, by or through the Company, its officers, directors, agents or associates, for the purpose of avoiding the payment to the Company of profits, fees or otherwise in connection with the Potential Transaction, without the specific written approval of the Company.  Except for the specific covenant of non-circumvention with respect to the Potential Transaction, nothing contained herein shall in any way limit Confidant’s future activities.

6. No Representation

The Confidant understands that the Company makes no representation or warranty as to the accuracy or completeness of the information it provides to the Confidant.  The Confidant agrees that neither the Company, nor any of its advisors, representatives, agents, or employees shall be held liable for utilization of Confidential Information which results from the Confidant’s use of said information.

7. Term

This Agreement shall, by mutual consent of the parties, remain in full force and affect for a period of three years from the date signed and executed by all parties, with the effective date being the date on which the final signature is affixed hereto.

8. Jurisdiction and Venue

The Parties to this contract agree that all disputes arising out of or in connection with, or in the application of, any of its provisions shall be finally resolved through arbitration under the administration of Federal Arbitration, Inc. and in accordance with its Rules for Arbitration.

9. Miscellaneous

a. As used in this Agreement, the following terms shall have the following meanings:  “Agents or employees” includes the directors, officers, and employees of any of the parties, it also includes the Confidant, any corporation, partnership, association, business trust, contractual organization, group, or other entity of which the confidant is a member, officer, director, agent, trustee, beneficiary, or has a position similar to the aforementioned.

b. Except for the limited right to use granted in 3© herein, no right or license, either express or implied, under any patent, copyright, trade secret, or other intellectual property right is transferred.

c. No agency or partnership relationship is created between the parties by this Agreement.

d. No party has an obligation under this Agreement to purchase any service or item from any of the other parties, or to offer any service or item for sale to any of the other parties and that any agreement to have a business relationship between the parties will exist only when such agreement is in writing and duly executed by all parties hereto.

e. ANY AND ALL ADDITIONS, MODIFICATIONS, AND WAIVERS of this Agreement must be made in writing and signed by all parties.  However, the failure of a party to insist on full compliance with any provisions of this Agreement in a particular instance shall not preclude it from requiring full compliance thereafter.

f. If any portion of this Agreement shall be held invalid, such invalidity shall not affect other provisions hereof, and to this extent, the provisions of this Agreement are to be and shall be deemed severable.  If any party hereto incurs any legal fees, whether or not an action is instituted, to enforce the terms of this Agreement or to recover damages or injunctive relief for breach of this agreement, it is agreed that the successful or prevailing parties shall be entitled to reasonable attorney fees and other costs in addition to any other relief to which it or they may be entitles.

g. This Agreement constitutes the entire understanding between all the parties and supersedes all previous understandings, agreements, communications, and representations, whether written or oral, concerning the discussions by and between the parties hereto and the Confidential Information.

Agreed to and Accepted by: King Sports, LLC

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