This Mutual Non-Disclosure Agreement (the “Agreement”) is entered into by and between Panorama Insurance Associates, Inc. (together with its subsidiaries and related entities "PIA"), and the undersigned party, each of whom may be referenced individually as a “Party” or collectively as the “Parties.” The Party or Parties receiving Confidential Information (as defined below) hereunder shall be referred to as the “Receiving Party” and the Party or Parties disclosing Confidential Information hereunder shall be referred to as the “Disclosing Party.”
WHEREAS, the Parties wish to discuss the potential for PIA to acquire the other Party's book of business (the “Purpose”);
WHEREAS, to discuss and evaluate the potential acquisition, it may be necessary for the Parties to disclose between the other Parties hereto certain Confidential Information; and
WHEREAS, each Party desires that all its Confidential Information disclosed to the other Party for the above-specified be subject to this Agreement.
NOW THEREFORE, in consideration of the mutual agreements contained in this Agreement, the Parties agree as follows:
1. The term “Confidential Information” means information regarding the Disclosing Party’s products, services, operations, customers or business, including, without limitation, material and information concerning products, services, processes, methods, trade secrets, trademarks, logos, know-how, techniques, materials, equipment, commissions, pricing formulas, test markets, borrower lists, borrower patterns, customer lists, lender and school lists, customer patterns, revenues, profits or sales, projections, estimates, financial statements, historical and projected financial information, tax returns and records, employee information, personal information, marketing data, customer information and other material and information not generally known to or readily available to other businesses or the general public. Confidential Information shall also include all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials prepared by or for the Receiving Party or its Representatives (as defined below) to the extent they contain, are based on, or otherwise reflect or are derived from any of the foregoing, whether such information is disclosed or made available in oral, visual, written, electronic, or other tangible or intangible form, or whether observed by the Receiving Party or its Representatives at any facility of Disclosing Party’s or any affiliate of Disclosing Party. Confidential Information also includes the fact that the Parties are in discussions regarding the Purpose (or, without limitation, any termination of such discussions) and that Confidential Information has been disclosed and any terms, conditions, or arrangements discussed regarding the Purpose.
2. Notwithstanding Section 1, “Confidential Information” shall not include any information that was: (a) publicly known (including having fallen into public domain) at the time of Disclosing Party’s communication thereof to Receiving Party, or becomes publicly known (or falls into public domain) through no breach of this Agreement by Receiving Party subsequent to the time of Disclosing Party’s communication thereof to Receiving Party; (b) already in Receiving Party’s possession and free of any obligation of confidentiality to the Disclosing Party at the time of Disclosing Party’s communication thereof to Receiving Party; (c) independently developed by Receiving Party without reference to or reliance upon any of Disclosing Party’s Confidential Information; or (d) previously or rightfully obtained by Receiving Party from a third party that is, to Receiving Party’s knowledge, authorized to make such disclosure, and without any restriction or requirement of confidentiality owed to the Disclosing Party upon such disclosure.
3. Receiving Party shall use Confidential Information only for the Purpose and not for any other reason. Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any individual, person, firm or business, except to those of Receiving Party’s affiliates, directors, officers, employees, shareholders, potential financing sources, advisors (including without limitation attorneys, accountants, tax and financial advisors), independent contractors and consultants (those of the foregoing who receive Confidential Information, collectively “Representatives”) who have a need to know in order to carry out the Purpose of this Agreement and who have been directed to abide by the confidentiality obligations of this Agreement. Receiving Party will be responsible for any breach of the provisions of this Agreement applicable to Representatives by its Representatives. The Parties hereto agree not to disclose the fact that the Parties are in discussions regarding the Purpose, and that Confidential Information has been disclosed and any terms, conditions, or arrangements discussed regarding the Purpose.
4. In the event that Receiving Party or any of its Representatives is requested or required, in connection with any legal or regulatory process, to disclose any Confidential Information, Receiving Party will give the Disclosing Party prompt written notice of such request or requirement (to the extent legally permissible and if circumstances permit) so that the Disclosing Party may seek an appropriate order or other remedy protecting the Confidential Information from disclosure.
5. Upon the Disclosing Party’s request, Receiving Party will promptly return to the Disclosing Party or destroy, at Receiving Party’s option, all copies of the Confidential Information in Receiving Party’s and its Representatives’ possession. Notwithstanding the foregoing, the Receiving Party and its Representatives shall have the right to retain copies of the Confidential Information to the extent (i) required to comply with legal or regulatory requirements or (ii) stored on routine electronic backup systems or pursuant to an automated electronic archival process, provided that any Confidential Information so retained shall remain subject to the confidentiality provisions of this Agreement for the remaining term hereof.
6. No Party has an obligation under this Agreement to (a) disclose any Confidential Information or (b) negotiate for, enter into, or otherwise pursue the Purpose. Disclosing Party provides all Confidential Information without any representation or warranty, express or implied, as to the accuracy or completeness thereof, and Disclosing Party will have no liability to the Receiving Party or any other person relating to Receiving Party’s use of any of the Confidential Information or any errors therein or omissions therefrom.
7. The Parties acknowledge and agree that any breach of this Agreement may cause injury to the non-breaching Party for which money damages may be an inadequate remedy and that, in addition to remedies at law, the non-breaching Party is entitled to seek equitable relief as a remedy for any such breach.
8. This Agreement and all matters relating hereto are governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws provisions thereof.
9. No failure or delay by the Disclosing Party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. The other Party hereto agrees to inform PIA if has received or receives an offer to purchase its book of business by a third party and to disclose to PIA the terms of said offer. Pursuant to the Affiliate Agreement between the Parties, PIA has a right of first refusal or a right to match any such third party offer.
11. This Agreement is the entire agreement of the parties regarding its specific subject matter, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, regarding such subject matter. Provided, however, for the sake of clarity, the obligations of the undersigned Party hereunder supplement and do not replace the confidentiality provisions of the Affiliate Agreement between the Parties. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by both parties. This Agreement may be signed in one or more counterparts, including electronic portable document format (PDF) copies, each of which shall be deemed one and the same original. No Party shall assign or transfer its interest or obligations hereunder without the written consent of the other Party.