Dear Prospective Investor:
In connection with your consideration of a possible transaction with Timbertop Growth Investment Fund LLC, a Delaware limited liability company (including affiliates, the "Company"), the Company will be furnishing you with certain information that is non-public, confidential or proprietary in nature. For the purpose of this Confidentiality Agreement ("Agreement"): "you" shall mean your company, its subsidiaries and affiliates, together with your respective partners, members, shareholders, principals, managers, directors, officers, employees, agents and advisors (including, without limitation, financial advisors, attorneys, and accountants) ("Your Representatives"); "Information" shall mean any and all information and data which you receive from the Company or its shareholders, directors, officers, employees, consultants, agents or advisors (including, without limitation, financial advisors, attorneys, and accountants) (the "Company Representatives") concerning the Company, including, without limitation, the Company's business, business plans, financial condition and projections, operations, strategies and prospects, assets and other proprietary information received orally or in writing and whether or not such information is identified as being confidential, but excepting information which (a) you can establish was already in your possession prior to the time of disclosure to you by the Company or the Company Representatives and which is not subject to any other restrictions on disclosure, (b) was or becomes generally available to the public other than as a result of a disclosure by you or in violation of confidentiality obligations owed to the Company, or (c) becomes available to you on a non-confidential basis from a source other than the Company or the Company Representatives, provided that such source is not known by you to be bound by a confidentiality agreement with the Company. The term Information shall also include the existence of this Agreement, the fact that the Company is contemplating a transaction, and the fact that these discussions are taking place.
In consideration of granting you access to the Information, you agree that the Information, the existence of this Agreement, the fact that the Company is contemplating a transaction, and the fact that these discussions are taking place will be held by you in strictest confidence, and shall not be disclosed or used by you in any manner whatsoever, in whole or in part, without the prior written consent of the Company. You further agree that:
1 The Information will be used by you solely in connection with the consideration of a possible consensual transaction with the Company and for no other purpose, including, without limitation to benefit or otherwise affect, in any way, your relative competitive position to the Company or to other entities. It is further agreed that the Information to be disclosed to you shall only be information which is reasonably necessary for the evaluation of the transaction contemplated by this Agreement, as determined by the Company, and that information not reasonably necessary for such purposes shall not be disclosed or exchanged;
2 You will restrict the dissemination of the Information to those of Your Representatives who need to know such Information for the purpose of evaluating the transaction discussed above, you will notify such persons of this Agreement, and you will ensure their compliance with its terms. You agree to be responsible for any breach of this Agreement or any other improper use or disclosure of Information by Your Representatives;
3 As a condition of the transmittal of the Information, in the event that the Company and you do not proceed with the transaction contemplated by this Agreement, you agree to return all Information received via overnight mail or, if requested by the Company in writing, destroy the Information as soon as your evaluation is complete (but in any event no later than the date established by the Company in writing), certifying to such destruction in writing. You further agree not to make any copies or reproductions of the Information including notes or analyses created by you therefrom, provided, however, that you may retain one copy of such documents as you are required to maintain in order to satisfy any law or regulation to which you are subject (to which copy your confidentiality obligations hereunder shall continue to apply in perpetuity);
4 You will not issue or release any public announcement or acknowledgement of discussions between you and the Company or the existence of this Agreement or any other agreement contemplated between the parties to this Agreement, except if you are advised by your legal counsel that such is required by law, and then only after reasonable written notice to the Company disclosing to the chief executive officer of the Company the content of such announcement or acknowledgement, so as to give the Company an opportunity to seek an appropriate protective order or other appropriate remedy, and you will reasonably cooperate with all such efforts and will use reasonable efforts to resist disclosure until such time as a protective order is in place (and if any such protective order or other remedy is not obtained, you agree to disclose only that portion of the Information which you are advised by counsel is legally required to be disclosed); and
5 You agree that money damages may not be a sufficient remedy for any breach of this Agreement, and that the Company shall be entitled to seek, and you shall not oppose the granting of, specific performance and injunctive or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company; and
Neither the Company nor any Company Representative makes, nor shall be deemed to make, any representations or warranties, express or implied, as to the accuracy or completeness of the Information, and neither the Company nor any Company Representative shall have any liability to you resulting from the use thereof. You agree that no obligation or contractual commitment of any kind, other than as set out in this Agreement, shall be deemed to exist between you and the Company, and that the Company shall not be under any legal obligation of any kind whatsoever to enter into any transaction or agreement by virtue of this Agreement.
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and undertakings, both written and oral, with respect to the subject matter hereof. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original. Executed copies of the signature pages of this Agreement sent by facsimile or transmitted electronically in either Tagged Image Format Files ("TIFF") or Portable Document Format ("PDF") shall be treated as originals, fully binding and with full legal force and effect. This Agreement shall expire three (3) years from the date first written above (other than as set forth in paragraph (3) above) and shall be governed by the internal laws of the State of Tennessee, without regard to conflict of laws or principles.