Mutual Confidentiality, Non-Disclosure, Non-Circumvention, Non-Solicitation and Non-Competition Agreement
A G RE E M E NT ,
BETWEEN: And : And:
M A D E T HI S
____ T H
D A Y O F M AR C H
2007.
Mr. Jaime Lalinde and his company Krauss, Lalinde & Beckman Capital, having their address at Calle 85, 10-41/503, Bogota, Colombia; Mr. Raymond Parent and his company PROBEUS Finance Corporation, having their address at 45 Place Charles Lemoyne Suite 111, Longueuil, Quebec, CANADA J4K 5G5; Mr. Gino Lucero and his company Mosaic Tradind Ltd., having their address at 4070 Croissant Olivier, Brossard, Quebec, CANADA, J4Y 2L1
WHEREAS given the expected flow of information between the Parties in the course of the contemplated discussions and transactions, any of them, acting individually or together, as a Disclosing Party or a Receiving Party agrees to be bound by the same terms of confidentiality, non-circumvention and non-competition. This Agreement shall then be read and interpreted in a manner to protect also the Disclosing Party and the Receiving Party from any disclosure of Confidential Information between them and the terms "Disclosing Party" shall then mean "Receiving Party" and vice-versa in order to give the Receiving Party the full benefit and protection, when and if applicable, of the terms of this Agreement. WHEREAS the parties hereto contemplate entering into a business relationship for each of their respective benefits; WHEREAS the parties acknowledge that to further the contemplated business it is or may be necessary that each divulge to the other some or all of the names, addresses of their respective business contacts and data, terms and conditions of trade, plans, strategies, projects, employees, principals, agents’ representatives and affiliates of each of them (hereinafter referred to as confidential information), as the transaction(s) justify and requires; WHEREAS each of the parties hereto acknowledges that the foregoing confidential information divulged by any party to the other party is confidential and proprietary to the party which divulged such confidential information (whether or not such information is available to the public); WHEREAS the parties to the Agreement acknowledge that certain confidential information will be mutually disclosed between the parties in connection with potential transactions; WHEREAS the Disclosing Party has provided and will provide the Receiving Party (and vice-versa) with documentation and information of a proprietary nature; WHEREAS the undersigned wish in the Agreement to define certain parameters of their and their affiliates’ relations and obligations; WHEREAS the Parties wish to ensure that the material, concepts and information, including names and references, which may be disclosed be treated in strictest confidence.
NOW THEREFORE in consideration of the mutual promises, assertions and covenants herein and other good
and valuable considerations, the parties hereto agree personally, on their own behalf and on that of their affiliates or associates and any of their companies, subsidiaries, stockholders, associates, employees, covertures, trading partners, (hereinafter referred to as affiliates) as follows: 1. The preamble is an integral part of this Agreement. 2. All material, concepts and/or information, including names and references, disclosed in oral, written, graphic photographic, recorded, electronically stored or transmitted in any other form by the Disclosing party to the Receiving Party and vice-versa shall be deemed to be «Confidential Information».
NAME (S) INITIALS
Lalind
Parent
Lucero
Page 1 of 4
NCND
Date: March
, 2007
3. Each party undertakes to keep confidential and secret the other party’s confidential information, business sources and affiliates and will disclose such information only on a “need to know” basis and with the expressed written permission of the other party. 4. The parties warrant that they own, control or are duly authorized to control all proprietary rights in and into their business, projects, patents and concepts. 5. No party hereto shall utilize for its own purposes the confidential information proprietary to any other signatory hereto unless such signatory is privy to the business contemplated. 6. Neither the Disclosing Party or the Receiving Party or their respective Agents will directly or indirectly disclose to any person that discussions are taking place concerning the project or any of the terms, conditions or other facts relating thereto. 7. Confidential Information supplied shall not be reproduced in any form except as required to accomplish the intent of this Agreement and of the potential business contemplated. Unless otherwise specified in writing, all documents and materials containing or embodying Confidential Information shall remain the property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving party agrees to return all documents and materials containing or embodying Confidential Information of the Disclosing Party, as well as all copies thereof. 8. Subject to the provisions herein, the term Confidential Information does not include any information which (i) the Receiving Party can prove is now legally in the possession of the Receiving Party, (ii) becomes generally available to the public other than as a result of a disclosure by the Receiving Party or the Receiving Party’s Agents or (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party is not covered by a confidentiality agreement or other obligation of secrecy. 9. The Receiving Party hereby agrees that the Confidential Information will be kept strictly confidential and the Receiving Party may not directly or indirectly use or disclose, or permit others to do so, the Confidential Information except for any purpose except for evaluation in connection with the project presented by the Disclosing Party. Disclosure is limited to the personnel of the Receiving Party and to the Receiving Party’s agents who need to know such information for evaluation purpose. The Receiving Party shall cause all persons to whom the Confidential Information is disclosed hereunder to execute a confidentiality agreement in a form similar to this Agreement and, in any event, the Receiving Party will be responsible for any breach hereof by its personnel and those of the Receiving Party’s agents. 10. No party hereto shall disclose the names, addresses, telephone, facsimile, telex numbers or any contracts introduced by any signatory hereto to third parties and each party recognizes such information and contracts as the exclusive property of the introducing party. Moreover, no party will enter into any direct or indirect negotiations or business with any persons or entity that was so introduced. None of the parties hereto shall in any manner solicit, transact, do or conclude any business nor compete with any person or entity introduced by the other party hereto unless such other party is privy to the business contemplated and/or that the introducing party has given permission to do so in writing nor shall any party attempt to circumvent the interest of the other party hereto. 11. If the Parties are unable to establish a relationship leading to transactions within a reasonable period of time of the signature of the present, the Receiving Party shall insure, on demand, that all tangible Confidential Information and any other tangible material containing or reflecting any information in the Confidential Information furnished to the Receiving Party or any of the Receiving Party’s Agents are promptly returned to the Disclosing Party and that no copies, extracts or other reproductions in whole or in part of such tangible material is retained by any of the same. All documents, memoranda, notes writings and tangible material whatsoever prepared by the Receiving Party or the Receiving Party’s Agents based on the Confidential Information shall be destroyed, and such destruction shall be certified in writing to the Disclosing Party by an authorized officer supervising such destruction.
NAME (S) INITIALS
Lalinde
Parent
Lucero
Page 2 of 4
NCND
Date: March
, 2007
12. The Receiving Party agrees not to compete with or infringe upon any Disclosing Party’s projects or transactions, as disclosed to a Receiving Party pursuant to the terms of this Agreement. Furthermore, the Receiving Party agrees to avoid taking any steps that would constitute a circumvention of this Agreement or counterfeit to the Disclosing Party, nor by its acts, to cause any prejudice arising therefrom to the Disclosing Party. 13. In view of the international nature of the business contemplated and the nature of the Disclosing Party project(s) and notwithstanding any termination of this Agreement, the provisions of confidentiality, noncircumvention and non-competition mentioned hereof shall apply for a period of five (5) years commencing upon the date of signature hereof. 14. In the event that any party hereto becomes aware that confidential information belonging to the other party has been divulged to third parties or that any other party has put to their own use any of the confidential information or solicited business from third parties introduced by the other party hereto, then the party which has become aware of such breach of this Agreement, shall be liable for all damages caused to the other party unless such party provides prompt notice of such breach to the party for whom such confidential information is proprietary so that it may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. 15. Should any party hereto breach the proprietary confidential information of any of the other parties hereto either directly or indirectly, the prejudiced party shall be entitled to pre-estimated liquidated damages equal to 110% of the maximum service fee that the introducing party would have realized from such transaction. Each of the parties recognize that irreparable injuries may be incurred by the other in the event of any breach of any term of this Agreement and therefore acknowledges that the remedies available at law in damages may be inadequate to protect any or all the parties against such a breach. The Receiving Party agrees that all remedies hereunder will be cumulative and that the Disclosing Party shall be entitled to equitable relief, including injunction with proof of actual damages, in the event of any actual or threatened breach of provisions hereof, in addition to any right at law to remedies, damages, and relief. If the Receiving Party or the Receiving Party’s agents are required in connection with any judicial or governmental proceedings (including, without limitation, by oral question, interrogatories or subpoena) disclose any Confidential Information, the Disclosing Party will be provided with prompt prior notice of such requests so that an appropriate protective order and/or waiver of compliance with the provisions of this Agreement may be obtained. 16. Each of the parties hereto mutually agree to assist in the enforcement of and to perform all such acts as might be necessary to give effect to this Agreement. 17. Each of the parties hereto acknowledges that this Agreement does not constitute a joint venture and does not render any of the parties hereto the agent or legal representative or mandatory of the other party hereto for any purpose whatsoever. 18. This Agreement constitutes the entire Agreement between the parties regarding the flow of information between them and may not be superseded, amended, or modified other than in writing except and with the written Agreement of all parties hereto. 19. In the event of a breach of this Agreement, failure by a party hereto to take action at law or to enforce or to waiver of any terms of this Agreement shall not effect such party’s rights or require full performance of this Agreement at any time thereafter. The waiver by a party of the breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by such party. 20. No terms or conditions in this Agreement shall be deemed to be waived by any party hereto unless such waiver shall be in writing. 21. This Agreement replaces all prior Confidential Agreements between the Parties, if any. This Agreement cannot be assigned without the consent in writing of the other party and nothing in this Agreement shall be interpreted so as to oblige either Party to enter into a future agreement.
NAME (S) INITIALS
Lalinde
Parent
Lucero
Page 3 of 4
NCND
Date: March
, 2007
22. A signature on this Agreement received by way of fax transmission shall be deemed to be execution of this Agreement which will then be enforceable and admissible for all purposes as may be necessary under the terms of this Agreement. 23. The parties agree that the disclosing party is having sole discretion in any matter related to the constitution and validity of this agreement and choice of sites of law governing the agreement and that any transactions carried out in virtue of the agreement will be judged in accordance with such law without the interference of any other law. 24. All signatories hereto acknowledge: a. b. That they have read the foregoing Agreement and that they are bound by their signatures both personally and on behalf of the parties to the terms of this Agreement; That they have full and complete authority to execute this Agreement for themselves and on behalf of any other party on whose behalf they have signed.
** THIS AGREEMENT CONTAINS TWENTY-FIVE (24) ARTICLES & FOUR (4) PAGES**
In witness thereof, THE PARTIES HAVE EXECUTED THIS AGREEMENT THE DAY AND YEAR FIRST ABOVE WRITTEN. FOR AND ON BEHALF OF Company: .Krauss, Lalinde & Beckman Capital Name: Jaime Lalinde
Signature:_____________________________
FOR AND ON BEHALF OF Company: PROBEUS Finance Corporation Name: Raymond Parent FOR AND ON BEHALF OF Company: Mosaic Trading Ltd. Name: Gino Lucero
Signature:_____________________________
Signature:_____________________________
NAME (S) INITIALS
Lalinde
Parent
Lucero
Page 4 of 4