Confidentiality and Non-Disclosure Agreement - SheerVision Inc. and Northeast Securities Inc.
[NORTHEAST SECURITIES, INC. LOGO] OMITTED
August 3, 2005
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with our possible interest in participating in a financial
transaction with SheerVision, Inc. (the "Company"), which may include a possible
recapitalization, restructuring, joint venture or sale of some of the Company,
or any of its assets, securities or business, the Company will be furnishing us
with certain information and materials of a non-public, confidential, or
proprietary nature. Such information and materials, in whole or in part,
together with analyses, compilations, studies or other documents or materials
prepared by us, our agents, our directors, our affiliates, or our employees
(collectively, the "Representatives"), which contain or otherwise reflect or are
generated from such information and our review of or interest in the Company, is
hereinafter referred to as the "Information" provided, however, that
"Information" shall not include information that (a) is or becomes generally
available to the public other than as a result of a disclosure by us or any
Representative, (b) is or becomes available to us on a non-confidential basis
from a source other than the Company or Hallmark Capital which is not bound by a
duty of confidentiality to you or the Company, (c) is independently developed by
us solely from publicly available information, or (d) is disclosed pursuant to
an order or requirement of a court, government administrative agency or other
governmental body.
In consideration of the Company furnishing us with the Information, we agree
that:
1. We shall use best efforts to keep the Information confidential and the
Information shall not, without the prior written consent of the Company,
be disclosed by us or any Representatives and shall not be used by us or
any Representatives other than solely in connection with our evaluating
the transactions contemplated above or pursuant to that certain Engagement
Letter dated August 2, 2005 between the Company and us (the "Engagement
Letter"). In disclosing the Information to Representatives, we agree to
disclose the information only to those Representatives who need to know
the information exclusively for the purpose of evaluating a possible
transaction with the Company, who are informed by us of the strictly
confidential nature of the information, and who shall have previously
agreed for our and the Company's benefit to be bound by the terms and
conditions of this Agreement. In any event, we shall be responsible for
any breach of this Agreement by the Representatives.
2. All copies of the Information, except for that portion of the Information
that consists of analyses, compilations, studies, or other documents
prepared by the Representatives, will be returned to the Company promptly
upon request without our or our Representatives retaining any copies
thereof. That portion of the Information which consists of analyses,
compilations, studies, or other documents prepared by the Representatives
will be held by us and kept
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strictly confidential and subject to the terms of this Agreement, or will
be destroyed. Such destruction will be confirmed in writing, upon request
of the Company.
3. Although we understand that the Company has included or will include in
the Information certain data that it believes to be relevant for the
purpose of our investigation, the Company is not making any representation
or warranty as to its accuracy or completeness.
4. Other than in connection with the performance of our services pursuant to
the Engagement Letter, neither we nor any Representatives will make any
disclosure of our review of, or interest in, the Company without the
Company's prior written consent, and we further agree that no Information
regarding the Company will be used by us or any Representatives in any
manner which might be construed by the Company to be competitive with or
detrimental to its existing or projected business operations.
5. In the event that we or any Representative to whom we transmit any
Information pursuant to this Agreement becomes legally compelled to
disclose any of the Information, we will provide the Company with prompt
notice thereof so that you and the Company may seek a protective order or
other appropriate remedy and/or waive compliance with the provisions of
this Agreement. In the event that such protective order or other remedy is
not obtained, or that the Company waives compliance with the provisions of
this Agreement, we will furnish only that portion of the Information which
is legally required.
6. We acknowledge that the injury which would be suffered by the Company in
the event of any breach of our or our Representatives' obligations
hereunder would be of a nature which could not be fully compensated for
solely by a recovery of monetary damages, and accordingly agree that in
the event of any breach or threatened breach of any of our obligations
hereunder, in addition to and not in lieu of any damages sustained by the
Company and any other remedies which the Company may pursue hereunder or
under applicable law, the Company shall have the right to equitable
relief, including issuance of a temporary restraining order, preliminary
injunction and/or permanent injunction by any court of competent
jurisdiction, against the commission or continuation of such breach or
threatened breach, without the necessity of proving any actual damages or
the posting of any bond.
7. This Agreement shall terminate one (1) year after the effective date of
this Agreement.
8. This Agreement shall be governed as to validity, construction, and
performance by the internal laws of the State of New York, without regard
to principles of conflict of laws and shall constitute the full Agreement
by us with respect to Information submitted to us or any Representatives
and shall supersede any and all prior agreements and understandings
relating thereto. No modification or addition to any provision of this
letter Agreement shall be binding unless approved in writing and signed by
an officer of both our company and the Company.
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[NORTHEAST SECURITIES, INC. LOGO] OMITTED
Accepted, Agreed to and Signed by:
For: NORTHEAST SECURITIES, INC.
By: /s/ O. Lee Tawes III
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O. Lee Tawes III
Date: __________________
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