THIS AGREEMENT is made by the Buyer (as identified below) for the benefit of ValueCap, Inc. (“ValueCap”), the Seller (as identified in the Listing ID Number).

WHEREAS ValueCap and Seller each agree to furnish the Buyer certain confidential information (as set forth below) relating to the operation and affairs of the Seller for purposes of aiding the Buyer in its review of the Seller's business, with the intent of enabling the Buyer to review the Seller's marketability for a possible sale or merger.

NOW THEREFORE, the parties agree as follows:

  1. ValueCap and Seller will disclose certain of its confidential and proprietary information (the “Confidential Information”) to Buyer. Confidential Information shall include, but not be limited to, any non-public information relating to operations, properties, personnel, financial information, policies, procedures, data, pricing, suppliers/distributor/customer information, software, R&D materials, other materials, products, technology, computer programs, manuals, business plans, software, marketing plans, and all ideas which are derived from or related to access to or knowledge of any of the enumerated materials and information, to Buyer.  The absence of any marking or statement that particular information is Confidential Information shall not affect its status as Confidential Information.

 

  1. Buyer agrees that the Confidential Information is to be considered confidential and proprietary to ValueCap and/or Seller and the Buyer shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of review and analysis for potential purchase or merger (the “Purpose”).  Buyer will not disclose, publish or otherwise reveal any of the Confidential Information received to any other parties, agents, representatives or employees whatsoever except with the specific prior written authorization of Company.  Notwithstanding the foregoing, Buyer may disclose Confidential Information to its own officers, directors, employees and advisers who reasonably need to know for the Purpose.  Buyer shall take appropriate action (by instructions, agreement or otherwise) with its officers, employees and advisers to satisfy its obligations under this Agreement.  Buyer shall be responsible to ValueCap and Seller for any violation of this Agreement its own officers, directors, employees, consultants or advisers.

 

  1. Confidential Information furnished in tangible form shall not be duplicated by Buyer except for purposes of this Agreement. If, at any time, Buyer determines that it is no longer interested in purchase or merger, Buyer shall return all Confidential Information received in written or tangible form, including copies or reproductions or other media containing such Confidential Information immediately.

 

  1. Buyer shall not disclose the fact that discussions are taking place concerning a possible acquisition or merger, without the prior written consent of Seller and ValueCap in each instance.  The Buyer agrees not to contact employees, customers, vendors, creditors or competitors of the Seller or have any discussions or communications of any kind, whether or not related to the purchase and sale, without the Seller’s prior written consent.

 

  1. The obligations of the Parties under this Agreement shall continue and survive the completion or abandonment of the purchase and sale and shall remain binding for a period of two (2) years from the date hereof.

 

  1. The parties agree that information shall not be deemed to be Confidential Information and the Buyer shall have no obligation with respect to information which: (i) is already known to the Buyer or is generally known within the Seller’s industry; (ii) is or becomes publicly known through no neglect or wrongful act of the Buyer; (iii) is rightfully received by the Buyer form a third party without restriction; (iv) is independently developed by the Buyer; (v) is furnished to a third party by the Seller or ValueCap without similar restriction on the third party’s rights of disclosure; (vi) is approved for release by written authorization of the Seller; or (vii) is required to be disclosed by any order of a governmental agency, legislative body or court of competent jurisdiction.

 

  1. Buyer agrees that for a period of two years following termination of this Agreement, Buyer will not, directly or indirectly solicit business from any of the Seller’s present customers, or

divert business from the Seller by influencing or attempting to influence any such present customers of the Seller with whom the Buyer has contact.

 

  1. During the term of this Agreement and for two years thereafter, Buyer shall not directly or indirectly hire or seek to hire or place any person employed then or within the preceding year by the Seller and involved directly or indirectly in the performance of any work under this agreement or whose resumes have been provided for evaluation, except with prior written consent of the Seller.  In case of any violation, Buyer will pay the Seller an amount equal to twenty-four months of salary or professional fees lump sum per person so hired.

 

  1. As a violation by Buyer of this Agreement could cause irreparable injury to Seller and/or ValueCap, and as there is no adequate remedy at law for such violation, upon a violation the Seller and/or ValueCap may, in addition to any other remedies available to it at law or in equity, enjoin the Buyer in a court of equity for violating or threatening to violate this Agreement, terminate the purchase contract or merger agreement and be entitled to Twenty-Five Thousand Dollars ($25,000) in liquidated damages. In the event any Party is required to enforce this Agreement through legal action, then it will be entitled to recover from the other Party all costs incurred thereby, including without limitation, reasonable attorney’s fees.

 

 10. Neither Seller nor ValueCap makes any representation or warranty with respect to any Confidential Information disclosed by it, nor shall either Party or any of their respective representatives have any liability hereunder with respect to the accuracy or completeness of any Confidential Information or the use thereof.

 

 11. Any provision of this Agreement held or determined by a court (or other legal authority) of competent jurisdiction to be illegal, invalid, or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective to the extent of such holding or determination without (i) invalidating the remaining provisions of this Agreement in that jurisdiction or (ii) affecting the legality, validity or enforceability of such provision in any other jurisdiction.

 

 12. Any notice required or permitted to be given hereunder shall be (a) in writing, (b) effective on the first business day following the date of receipt, and (c) delivered by one of the following means: (i) by personal delivery; (ii) by prepaid, overnight package delivery or courier service; or (iii) by the United States Postal Service, first class, certified mail, return receipt requested, postage prepaid. All notices given under this Agreement shall be addressed to the addresses stated at the outset of this Agreement, or to new or additional addresses as the Parties may be advised in writing.

 

 13. This Agreement is to be governed by and construed in accordance with the laws of the state of New York. No Party shall be deemed to waive any of its rights, powers or remedies hereunder unless such waiver is in writing and signed by said Party. This Agreement is binding upon and inure to the benefit of the Parties and their successor and assigns.

 

 14. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof, and is intended as the Parties’ final expression and complete and exclusive statement of the terms thereof, superseding all prior or contemporaneous agreements, representations, promises and understandings, whether written or oral. Each Party is to be bound by any pre-printed terms appearing in the other Party’s form documents, tariffs, purchase orders, quotations, acknowledgments, invoices, or other instruments. This Agreement may be amended or modified only by an instrument in writing signed by each Party.

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly

authorized officers on the day and year first above written.

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Acceptance & Signature

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THIS AGREEMENT is made by the Buyer (as identified below) for the benefit of ValueCap, Inc. (“ValueCap”), the Seller (as identified in the Listing ID Number).

WHEREAS ValueCap and Seller each agree to furnish the Buyer certain confidential information (as set forth below) relating to the operation and affairs of the Seller for purposes of aiding the Buyer in its review of the Seller's business, with the intent of enabling the Buyer to review the Seller's marketability for a possible sale or merger.

NOW THEREFORE, the parties agree as follows:

  1. ValueCap and Seller will disclose certain of its confidential and proprietary information (the “Confidential Information”) to Buyer. Confidential Information shall include, but not be limited to, any non-public information relating to operations, properties, personnel, financial information, policies, procedures, data, pricing, suppliers/distributor/customer information, software, R&D materials, other materials, products, technology, computer programs, manuals, business plans, software, marketing plans, and all ideas which are derived from or related to access to or knowledge of any of the enumerated materials and information, to Buyer.  The absence of any marking or statement that particular information is Confidential Information shall not affect its status as Confidential Information.

 

  1. Buyer agrees that the Confidential Information is to be considered confidential and proprietary to ValueCap and/or Seller and the Buyer shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of review and analysis for potential purchase or merger (the “Purpose”).  Buyer will not disclose, publish or otherwise reveal any of the Confidential Information received to any other parties, agents, representatives or employees whatsoever except with the specific prior written authorization of Company.  Notwithstanding the foregoing, Buyer may disclose Confidential Information to its own officers, directors, employees and advisers who reasonably need to know for the Purpose.  Buyer shall take appropriate action (by instructions, agreement or otherwise) with its officers, employees and advisers to satisfy its obligations under this Agreement.  Buyer shall be responsible to ValueCap and Seller for any violation of this Agreement its own officers, directors, employees, consultants or advisers.

 

  1. Confidential Information furnished in tangible form shall not be duplicated by Buyer except for purposes of this Agreement. If, at any time, Buyer determines that it is no longer interested in purchase or merger, Buyer shall return all Confidential Information received in written or tangible form, including copies or reproductions or other media containing such Confidential Information immediately.

 

  1. Buyer shall not disclose the fact that discussions are taking place concerning a possible acquisition or merger, without the prior written consent of Seller and ValueCap in each instance.  The Buyer agrees not to contact employees, customers, vendors, creditors or competitors of the Seller or have any discussions or communications of any kind, whether or not related to the purchase and sale, without the Seller’s prior written consent.

 

  1. The obligations of the Parties under this Agreement shall continue and survive the completion or abandonment of the purchase and sale and shall remain binding for a period of two (2) years from the date hereof.

 

  1. The parties agree that information shall not be deemed to be Confidential Information and the Buyer shall have no obligation with respect to information which: (i) is already known to the Buyer or is generally known within the Seller’s industry; (ii) is or becomes publicly known through no neglect or wrongful act of the Buyer; (iii) is rightfully received by the Buyer form a third party without restriction; (iv) is independently developed by the Buyer; (v) is furnished to a third party by the Seller or ValueCap without similar restriction on the third party’s rights of disclosure; (vi) is approved for release by written authorization of the Seller; or (vii) is required to be disclosed by any order of a governmental agency, legislative body or court of competent jurisdiction.

 

  1. Buyer agrees that for a period of two years following termination of this Agreement, Buyer will not, directly or indirectly solicit business from any of the Seller’s present customers, or

divert business from the Seller by influencing or attempting to influence any such present customers of the Seller with whom the Buyer has contact.

 

  1. During the term of this Agreement and for two years thereafter, Buyer shall not directly or indirectly hire or seek to hire or place any person employed then or within the preceding year by the Seller and involved directly or indirectly in the performance of any work under this agreement or whose resumes have been provided for evaluation, except with prior written consent of the Seller.  In case of any violation, Buyer will pay the Seller an amount equal to twenty-four months of salary or professional fees lump sum per person so hired.

 

  1. As a violation by Buyer of this Agreement could cause irreparable injury to Seller and/or ValueCap, and as there is no adequate remedy at law for such violation, upon a violation the Seller and/or ValueCap may, in addition to any other remedies available to it at law or in equity, enjoin the Buyer in a court of equity for violating or threatening to violate this Agreement, terminate the purchase contract or merger agreement and be entitled to Twenty-Five Thousand Dollars ($25,000) in liquidated damages. In the event any Party is required to enforce this Agreement through legal action, then it will be entitled to recover from the other Party all costs incurred thereby, including without limitation, reasonable attorney’s fees.

 

 10. Neither Seller nor ValueCap makes any representation or warranty with respect to any Confidential Information disclosed by it, nor shall either Party or any of their respective representatives have any liability hereunder with respect to the accuracy or completeness of any Confidential Information or the use thereof.

 

 11. Any provision of this Agreement held or determined by a court (or other legal authority) of competent jurisdiction to be illegal, invalid, or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective to the extent of such holding or determination without (i) invalidating the remaining provisions of this Agreement in that jurisdiction or (ii) affecting the legality, validity or enforceability of such provision in any other jurisdiction.

 

 12. Any notice required or permitted to be given hereunder shall be (a) in writing, (b) effective on the first business day following the date of receipt, and (c) delivered by one of the following means: (i) by personal delivery; (ii) by prepaid, overnight package delivery or courier service; or (iii) by the United States Postal Service, first class, certified mail, return receipt requested, postage prepaid. All notices given under this Agreement shall be addressed to the addresses stated at the outset of this Agreement, or to new or additional addresses as the Parties may be advised in writing.

 

 13. This Agreement is to be governed by and construed in accordance with the laws of the state of New York. No Party shall be deemed to waive any of its rights, powers or remedies hereunder unless such waiver is in writing and signed by said Party. This Agreement is binding upon and inure to the benefit of the Parties and their successor and assigns.

 

 14. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof, and is intended as the Parties’ final expression and complete and exclusive statement of the terms thereof, superseding all prior or contemporaneous agreements, representations, promises and understandings, whether written or oral. Each Party is to be bound by any pre-printed terms appearing in the other Party’s form documents, tariffs, purchase orders, quotations, acknowledgments, invoices, or other instruments. This Agreement may be amended or modified only by an instrument in writing signed by each Party.

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly

authorized officers on the day and year first above written.

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