Confidentiality Agreement

P&C Material Holdings LLC Confidentiality Agreement
8350 N Central Expy, Houston, TX 75206 · pcmaterialholdings.com

CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (this “Agreement”), entered into as of ___________ (the “Effective Date”), is executed by P&C Material Holdings LLC, a Wyoming limited liability company (“P&C”), and _________________, a ____________________ (“Company”). P&C and Company are referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, P&C and Company desire to discuss the possibility of P&C and Company entering into an agreement for P&C or its affiliates to provide critical materials and critical material energy-related products, energy related products and services to Company at Company’s facilities or to other companies or facilities or for another business purpose (the “Transaction”);

WHEREAS, the Parties, for their mutual benefit and in contemplation of the foregoing, may exchange Confidential Information (as defined below) during the term of their relationship; and

WHEREAS, the Parties wish to define their respective rights and obligations with respect to such Confidential Information.

NOW THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows:

AGREEMENT

1. Definition. As used herein, the term “Confidential Information” means information disclosed or provided by or on behalf of the disclosing Party during the term of this Agreement which is of a non-public, proprietary or confidential nature to the disclosing Party, its affiliates, or to any third parties to whom the disclosing Party owes a duty of confidentiality, including, without limitation, all reports and analyses, technical and economic data, studies, forecasts, trade secrets, research or business strategies, customers and potential customers, costs and pricing, inventions, financial or contractual information. Confidential Information may be disclosed in any form, including orally, in writing, by inspection or otherwise, but oral or intangible information must be confirmed by the disclosing Party as constituting Confidential Information within ten days after disclosure. “Confidential Information” shall also include the fact that the Parties are discussing the Transaction and the status of any negotiations related to such Transaction. “Signor/Introducer” means P&C Material Holdings LLC or any authorized affiliate, representative, or agent thereof that facilitates introductions, relationships, or communications under this Agreement. Each Party may act as an Introducer under this Agreement, and the obligations herein shall apply mutually.

“Receiving Party” means the Party that receives Confidential Information under this Agreement.

2. Exclusions. Notwithstanding the provisions of paragraph 1, the term “Confidential Information” shall not include, and neither Party is obligated to maintain in confidence or not use, any information (or any portion thereof) disclosed to it by the other Party to the extent that such information:

(i) is in the public domain at the time of disclosure;
(ii) following disclosure, becomes generally known or available through no act or omission on the part of the receiving Party;
(iii) is known, or becomes known, to the receiving Party from a source other than the disclosing Party or its Representatives (as defined herein), but only if disclosure by such source is not in breach of a confidentiality agreement with the disclosing Party; or
(iv) is independently developed by the receiving Party without violating any of its obligations under this Agreement.

Confidential Information shall not be deemed to fall within the exceptions of subparts (i) to (iv) above merely because it is included in a document which also includes information that does fall within such exceptions.

3. Treatment of Confidential Information. Confidential Information (i) may be used by the receiving Party solely in connection with the Transaction, and (ii) will be kept confidential and not disclosed by the receiving Party to any other person, except that Confidential Information may be disclosed to any of the receiving Party’s affiliates and its and their respective directors, officers, employees, attorneys, accountants, consultants, advisors, actual or potential sources of debt or equity financing, and agents (collectively, its “Representatives”) who require access to such information in connection with the evaluation of the Transaction and who are informed of the confidential or proprietary nature thereof and of the receiving Party’s obligations under this Agreement. Each Party is responsible for any use or disclosure of Confidential Information by any of its Representatives. The receiving Party shall and shall cause its Representatives to protect and safeguard the confidentiality of the disclosing Party’s Confidential Information with at least the same degree of care as the receiving Party would protect its own Confidential Information of a similar nature, but in no event with less than reasonable efforts. A receiving Party shall notify the disclosing Party promptly after discovery of any unauthorized possession, use or knowledge, or attempt thereof, of the disclosing Party’s Confidential Information by the receiving Party or its Representatives.

3.1 Non-Direct Contact; Channeling of Communications. Notwithstanding anything to the contrary in this Agreement, and without limiting the confidentiality obligations herein, each Party agrees that it shall not, directly or indirectly, initiate, solicit, accept, or engage in any communication, negotiation, or discussion with any customer, supplier, partner, financing source, contractor, governmental entity, investor, employee, advisor, or other third party introduced, disclosed, identified, or made known (whether directly or indirectly) by the other Party or its Representatives (each, an “Introduced Party”) without the prior written consent of the introducing Party.

All communications relating to the Transaction or any related opportunity involving an Introduced Party shall be conducted exclusively through the introducing Party unless otherwise agreed in writing.

For avoidance of doubt: an Introduced Party includes any person or entity whose identity becomes known through meetings, calls, emails, data rooms, presentations, site visits, shared materials, or other exchanges of Confidential Information. Introduction may be direct or indirect and does not require a formal written designation. The fact that an Introduced Party may have been generally known in the industry shall not eliminate protection if the relationship, access, opportunity, or material information was facilitated by the introducing Party.

Any breach of this Section shall constitute a material breach of this Agreement.

3.2 Non-Circumvention; Non-Exploitation; Remedies. Each Party agrees that during the Term of this Agreement and for a period of two (2) years following its termination or expiration, it shall not, directly or indirectly, for itself or on behalf of any affiliate, subsidiary, related entity, successor, assign, or third party: (1) circumvent, avoid, bypass, eliminate, reduce, dilute, or otherwise interfere with the business relationship, economic interest, or expectancy of the introducing Party with respect to any Introduced Party; (2) enter into, negotiate, pursue, or consummate any transaction, agreement, arrangement, partnership, joint venture, financing, development, supply agreement, energy services agreement, acquisition, or other business relationship with any Introduced Party relating to the Transaction or any substantially similar opportunity, without the prior written consent of the introducing Party; (3) utilize Confidential Information or knowledge gained through the introducing Party to independently replicate, pursue, compete for, or exploit the same or substantially similar opportunity; (4) solicit, induce, or encourage any Introduced Party to reduce, terminate, or modify its relationship with the introducing Party; (5) structure any transaction in a manner designed to avoid compensation, participation, involvement, or economic benefit of the introducing Party.

This non-circumvention obligation applies regardless of whether the transaction is modified in structure, the opportunity evolves or is expanded, the deal is completed through an affiliate or intermediary, or the final agreement differs from the originally contemplated structure.

The Parties acknowledge and agree that introductions and relationships constitute valuable proprietary business assets; circumvention would cause irreparable harm not adequately compensable by monetary damages; and the introducing Party shall be entitled to immediate equitable relief, including temporary restraining orders, preliminary injunctions, permanent injunctions, and specific performance, without the requirement to post bond (to the extent permitted by law).

In addition, in the event of any circumvention or breach of this Section 3.2, the circumventing Party shall be legally obligated to pay to the introducing Party, as liquidated damages (and not as a penalty), an amount equal to the full monetary loss of revenue, profits, commissions, fees, or other economic benefits that the introducing Party would have reasonably realized from any project, transaction, or opportunity arising out of or related to communications, negotiations, or dealings with the circumvented Introduced Party, calculated based on the projected or actual revenue tied to the project (whichever is greater). The circumventing Party shall also be liable for any additional actual damages proven by the introducing Party that exceed the liquidated damages amount.

Per-Instance Penalty for Circumvention or Unauthorized Business Dealings. In the event of any documented instance of circumvention, unauthorized business dealings, or any transaction, communication, negotiation, arrangement, agreement, or business relationship conducted, consummated, or benefited from by a Party or its Representatives directly or indirectly (i) without the prior written consent of P&C; (ii) without P&C’s knowledge; (iii) without P&C’s approval; (iv) behind P&C’s back; or (v) in a manner designed or having the effect of excluding, bypassing, reducing, diluting, or otherwise circumventing P&C’s participation, compensation, involvement, or economic benefit with respect to any Introduced Party or Introduced Opportunity (each, a “Violation Instance”), the breaching Party shall pay to P&C, as liquidated damages and not as a penalty, the sum of Three Million Dollars (USD $3,000,000.00) per Violation Instance. A “documented instance” means any Violation Instance evidenced by written, electronic, or other recorded communications (including emails, text messages, contracts, term sheets, letters of intent, meeting records, wire transfers, bank records, or other financial records), sworn testimony, or other reasonably reliable evidence sufficient to establish that the Violation Instance occurred. Each separate act constituting a Violation Instance shall give rise to a separate and independent $3,000,000.00 liquidated damages obligation. The Parties agree that this amount is a reasonable pre-estimate of P&C’s damages given the difficulty in precisely calculating lost revenue, lost business opportunities, lost relationships, reputational harm, and other losses arising from circumvention; this liquidated damages provision is not a penalty; and P&C shall not be required to prove actual damages to recover liquidated damages under this provision. P&C’s right to recover liquidated damages under this provision is in addition to, and shall not limit or prejudice, P&C’s right to seek equitable relief, injunctive relief, disgorgement, actual damages exceeding the liquidated damages amount where proven, and any other remedies available under this Agreement or applicable law.

The prevailing Party shall be entitled to recover reasonable attorneys’ fees and costs.

The obligations set forth in this Section shall survive termination of this Agreement and shall apply to all opportunities arising from introductions or Confidential Information disclosed during the Term.

4. Disclosure Required by Law. If any proceeding is brought to compel the receiving Party or any of its Representatives to disclose Confidential Information or if the receiving Party or any of its Representatives is otherwise required by law (including regulations promulgated by the Securities and Exchange Commission and the rules of a securities exchange or electronic quotation system) to disclose any Confidential Information, the receiving Party will: (i) promptly notify the disclosing Party of that proceeding or that requirement, unless by doing so the receiving Party would violate any law or an order of a governmental body; and (ii) at the disclosing Party’s expense, cooperate with the disclosing Party in any proceeding the disclosing Party brings to prevent that disclosure or to protect the confidentiality of any information that is disclosed.

5. Securities Laws. The Parties hereby acknowledge that each Party or its Representatives may receive material, non-public information hereunder and that United States securities laws impose restrictions on trading in securities when in possession of such information or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell securities.

6. No License. The Parties agree that: (i) all rights to Confidential Information disclosed pursuant to this Agreement are reserved to the disclosing Party; and (ii) no license or conveyance of any rights relating to the Confidential Information is granted or implied by either Party to the other. The receiving Party will not reverse engineer, disassemble, or create other works from any software or hardware constituting or included in any Confidential Information.

7. No Commitment. Nothing in this Agreement shall obligate either Party to disclose any Confidential Information about itself to the other Party, and any disclosure of Confidential Information shall be at the disclosing Party’s sole discretion. This Agreement does not constitute a commitment or promise by either Party to proceed with any transaction. If the Parties do elect to proceed with the Transaction, all agreements, representations, warranties, covenants and conditions with respect thereto will be set forth in a separate written agreement to be negotiated, and if agreement can be reached, executed by the Parties. Nothing in this Agreement creates a partnership, joint venture, agency or similar relationship or restricts in any way the rights each Party has (i) to conduct its business and business development activities, (ii) to market and sell its products and services, and (iii) to acquire or obtain products and services or to disclose its own confidential information to third parties.

8. No Representations. While each Party agrees to take reasonable steps to ensure the Confidential Information it provides is reasonably accurate, complete and not materially misleading, neither Party makes any representation or warranty as to the accuracy or completeness of any Confidential Information; except that the disclosing Party represents and warrants that it has the right and authority to disclose the Confidential Information to the receiving Party. Except as set forth above, neither Party nor any of its respective Representatives will have any liability relating to or arising from any use of or reliance upon the Confidential Information.

9. Term and Termination. This Agreement shall be effective from the Effective Date until the earliest to occur of: (i) the execution of a definitive agreement governing the Transaction, which includes confidentiality provisions substantially similar to those set forth herein or which expressly supersedes this Agreement; (ii) written notice given by either Party to the other Party terminating the evaluation of the Transaction; or (iii) two years from the Effective Date. The obligation to protect the confidentiality of Confidential Information received prior to the date of termination shall survive for a period of two years following the termination of this Agreement. Notwithstanding anything herein to the contrary, the non-circumvention obligations set forth in Section 3.2 shall survive termination or expiration of this Agreement for the full two (2) year period specified therein.

10. Obligations Following Termination. Upon a disclosing Party’s request, the receiving Party shall use commercially reasonable efforts to destroy all Confidential Information received from the disclosing Party in the possession of the receiving Party or its Representatives. Notwithstanding the foregoing, the Receiving Party is entitled to retain (i) any Confidential Information stored in electronic or other backup or archival media in accordance with the receiving Party’s regular business processes and (ii) copies of such Confidential Information as may be retained in accordance with the receiving Party’s record retention policies or law and regulation, so long as all such retained Confidential Information remains subject to the terms of this Agreement.

11. Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party except (i) to an affiliate of that Party or (ii) in connection with the sale of all or substantially all of the business or assets of the assigning Party.

12. Remedies. Without prejudice to any other rights and remedies available at law or in equity, the Disclosing Party shall be entitled to seek equitable relief, including temporary restraining orders, preliminary injunctions, permanent injunctions, and specific performance, in the event of any breach of this Agreement by the Receiving Party. The Parties expressly acknowledge and agree that monetary damages alone would be inadequate to remedy such a breach. Nothing in this section shall limit the Disclosing Party’s right to pursue additional equitable remedies.

13. Governing Law; Waiver of Jury Trial. This Agreement shall be governed by the laws of the State of Nevada, excluding its conflict of laws rules. Each Party hereby waives its right to a trial by jury in any proceedings arising out of this Agreement or arising out of disclosure or use of Confidential Information.

14. Recovery of Expenses. The prevailing Party in any dispute or litigation arising in connection with this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.

15. Counterparts; Signatures. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same document. This Agreement may be executed by facsimile signature and electronic signature, any of which shall be fully binding and effective for all purposes and will be given the same effect as original signatures.

16. Severability. The provisions of this Agreement are severable, and if any one or more of such provisions is determined to be judicially unenforceable, the remaining provisions shall nevertheless be binding and enforceable.

17. Media. All media releases and public announcements or disclosures by either Party relating to this Agreement, its subject matter or the Transaction shall be coordinated with and approved by the other Party in writing prior to the release thereof, except as otherwise required by law.

18. Notices.
To P&C: P&C Material Holdings LLC, 8350 N Central Expy, Houston, TX 75206. Attn: john@pcmaterialholdings.com · John Holden – 214.536.9542

19. Entire Agreement. This Agreement embodies all of the understandings between the Parties concerning the subject matter hereof, and merges all prior discussions and writings between them as to confidentiality of information other than as expressly provided in this Agreement.

20. Miscellaneous. No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder. This Agreement may not be amended or modified except by a writing signed by each of the Parties.

IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the Effective Date, acknowledging that they enter into it voluntarily and with the intent to create a binding and enforceable legal obligation.