CONFIDENTIAL TREATMENT REQUESTED
MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Dated as of October 14, 2024
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is entered into as of October 14, 2024 (the "Effective Date"), by and between:
Harrowgate Private Equity Fund IV LP, a Delaware limited partnership, with its principal office at 300 King Street, Suite 4200, Wilmington, Delaware 19801 ("Harrowgate" or "Party A");
and
VeloPay Systems, Inc., a Delaware corporation, with its principal office at 1455 Innovation Parkway, Suite 800, Austin, Texas 78759 ("VeloPay" or "Party B").
Harrowgate and VeloPay are each individually referred to herein as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Parties desire to explore and evaluate a potential strategic transaction, which may include a possible acquisition, merger, investment, or other business combination involving VeloPay (the "Transaction" or the "Proposed Transaction");
WHEREAS, in connection with the evaluation of the Proposed Transaction, each Party may disclose to the other Party certain proprietary, confidential, and non-public information;
WHEREAS, the Parties wish to establish the terms and conditions under which such Confidential Information (as defined below) will be disclosed, received, and protected; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1: DEFINITIONS
1.1 "Confidential Information." As used in this Agreement, "Confidential Information" means all non-public, confidential, or proprietary information disclosed by either Party (in its capacity as the "Disclosing Party") or its Representatives to the other Party (in its capacity as the "Receiving Party") or its Representatives, whether disclosed orally, in writing, electronically, visually, or by any other means, and whether disclosed before or after the Effective Date, in connection with the evaluation of the Proposed Transaction. Without limiting the generality of the foregoing, Confidential Information includes the following categories of information:
(a) financial information of every kind, including historical and projected revenue, earnings before interest, taxes, depreciation, and amortization ("EBITDA"), cash flow statements, balance sheets, capitalization tables, debt instruments, credit facilities, and tax-related information;
(b) business plans, strategic plans, projections, forecasts, budgets, and operating models;
(c) customer lists, customer data, merchant data, transaction volumes (including, without limitation, VeloPay's approximately $87 billion annualized gross payment volume as of the date hereof), settlement data, and related analytics;
(d) pricing models, fee schedules, discount rates, interchange arrangements, and revenue-sharing agreements;
(e) technical data, software (in both object code and source code form), algorithms, architectures, system designs, application programming interfaces, data models, and specifications;
(f) trade secrets, know-how, inventions, techniques, processes, and methodologies;
(g) intellectual property, including patents, patent applications, trademarks, copyrights, and trade dress, together with any pending applications or registrations therefor;
(h) product roadmaps, research and development plans, new product or service concepts, and related timelines;
(i) employee information, including organizational charts, compensation data, benefit plans, retention arrangements, employment agreements, and equity incentive plans;
(j) capitalization information, equity holder and investor information, and related governance documentation;
(k) contractual arrangements, including material commercial agreements, vendor contracts, partnership agreements, licensing agreements, and joint venture arrangements;
(l) regulatory filings, licenses, permits, approvals, and related correspondence with governmental authorities;
(m) litigation matters, threatened or pending claims, regulatory investigations, and related legal assessments;
(n) any analyses, compilations, studies, notes, interpretations, memoranda, summaries, or other documents or materials prepared by the Receiving Party or its Representatives that contain, reflect, or are based upon, in whole or in part, any Confidential Information (collectively, "Derived Materials"); and
(o) any information about the existence of this Agreement or the fact that discussions or negotiations are taking place between the Parties regarding the Proposed Transaction, or any terms, conditions, status, or other facts relating to the Proposed Transaction, including the identity of the Parties to such discussions (collectively, "Transaction Information").
1.2 Exclusions from Confidential Information. Notwithstanding the foregoing, "Confidential Information" shall not include information that the Receiving Party can demonstrate by competent evidence:
(a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement;
(b) was already known to the Receiving Party on a non-confidential basis prior to the time of disclosure by the Disclosing Party or its Representatives, as evidenced by competent written records in the Receiving Party's files existing prior to such disclosure;
(c) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party's knowledge after reasonable inquiry, bound by a confidentiality obligation to the Disclosing Party or any of its Representatives with respect to such information; or
(d) is independently developed by the Receiving Party or its Representatives without use of or reference to any of the Disclosing Party's Confidential Information, as evidenced by competent written records.
The burden of establishing the applicability of any of the foregoing exclusions shall rest with the Receiving Party asserting such exclusion. No combination of features forming part of the Confidential Information shall be deemed to be within any of the foregoing exclusions merely because individual features are in the public domain or in the Receiving Party's possession unless the specific combination itself, and its principle of operation, are in the public domain or in the Receiving Party's possession.
1.3 "Representatives." As used in this Agreement, "Representatives" means, with respect to each Party, its affiliates, and its and their respective directors, officers, employees, managing partners, general partners, limited partners (solely to the extent such limited partners have a need to know in connection with the Permitted Purpose), agents, advisors, consultants, attorneys, accountants, financial advisors, investment bankers, lenders, potential sources of financing, and other professional representatives. Without limiting the generality of the foregoing:
(a) with respect to Harrowgate, "Representatives" includes Harrowgate Capital Management IV LLC, in its capacity as general partner of Harrowgate Private Equity Fund IV LP, and the respective directors, officers, employees, and partners thereof, and their advisors including Calderwood & Harkness LLP (legal counsel) and Pendleton Hawkes & Co. (financial advisor); and
(b) with respect to VeloPay, "Representatives" includes its officers (including Nathan Aldridge, Chief Executive Officer; Sonia Reyes-Watkins, Chief Technology Officer; Marcus Langford, Chief Financial Officer; and Danielle Moreau, General Counsel), members of the Board of Directors of VeloPay, and their advisors including Whitford Jessup & Crane LLP (legal counsel) and Velthryn Greer & Associates (financial advisor).
Each Party shall be responsible for any breach of this Agreement by any of its Representatives, and agrees, at its sole cost and expense, to take all reasonable measures to ensure its Representatives' compliance with the terms and conditions of this Agreement. Any act or omission of a Party's Representative that, if taken by the Party itself, would constitute a breach of this Agreement shall be deemed a breach of this Agreement by such Party.
1.4 "Person." As used in this Agreement, "Person" means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental entity or agency, regulatory authority, or other entity of any kind or nature.
SECTION 2: USE OF CONFIDENTIAL INFORMATION
2.1 Permitted Use. Each Receiving Party shall use the Confidential Information solely for the purpose of evaluating, negotiating, and, if applicable, consummating the Proposed Transaction (the "Permitted Purpose"). Neither Party shall, directly or indirectly, use or exploit any Confidential Information for any purpose whatsoever other than the Permitted Purpose without the prior written consent of the Disclosing Party. Without limiting the foregoing, neither Party shall use Confidential Information of the other Party to compete with the other Party, to solicit the other Party's customers or merchants, or for any purpose that would be detrimental to the Disclosing Party's business interests.
2.2 Restriction on Disclosure. The Receiving Party shall not disclose, reveal, publish, or otherwise make available any Confidential Information to any Person, except to those of its Representatives who (a) have a legitimate need to know such Confidential Information in connection with the Permitted Purpose, and (b) have been informed of the confidential nature of the Confidential Information and the terms and conditions of this Agreement and have agreed, or are otherwise bound by professional ethical obligations or fiduciary duties, to treat such information in accordance with the terms of this Agreement. Before disclosing any Confidential Information to any Representative, the disclosing Party shall ensure that such Representative understands and acknowledges the obligations set forth in this Agreement. The Receiving Party shall be fully responsible and liable for any breach or violation of this Agreement by any of its Representatives as if such Representative were a party to this Agreement, and the Receiving Party agrees to take all reasonable measures to restrain its Representatives from any unauthorized disclosure or use of Confidential Information.
SECTION 3: STANDARD OF CARE
Each Receiving Party shall protect the confidentiality of the Confidential Information using the same degree of care that it uses to protect its own confidential and proprietary information of a similar nature and importance, but in no event less than a reasonable degree of care. Each Receiving Party shall implement and maintain appropriate administrative, technical, and physical safeguards designed to prevent the unauthorized access, disclosure, use, destruction, loss, or alteration of Confidential Information. Each Receiving Party shall take all reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, including restricting access to Confidential Information to those Representatives who have a need to know in connection with the Permitted Purpose and maintaining appropriate information security measures consistent with industry practices for the protection of confidential information of a similar nature.
SECTION 4: COMPELLED DISCLOSURE
4.1 Legal Process. If the Receiving Party or any of its Representatives is compelled by applicable law, regulation, legal proceeding, subpoena, civil investigative demand, request or order of a governmental authority, regulatory examination, or other governmental or legal process (collectively, "Legal Process") to disclose any Confidential Information, the Receiving Party shall, to the extent legally permitted and reasonably practicable, promptly provide written notice to the Disclosing Party of such requirement, including the nature of the Legal Process and the Confidential Information requested, so that the Disclosing Party may seek a protective order, injunction, or other appropriate remedy or relief, or waive compliance with the applicable provisions of this Agreement. The Receiving Party agrees to cooperate reasonably with the Disclosing Party, at the Disclosing Party's sole cost and expense, in seeking any such protective order or other remedy. If, after providing such notice and opportunity, such protective order or other remedy is not obtained, or if the Disclosing Party waives compliance with the applicable provisions of this Agreement, the Receiving Party (or its Representative, as applicable) shall disclose only that portion of the Confidential Information that is legally required to be disclosed and shall use commercially reasonable efforts to ensure that confidential treatment is accorded to such Confidential Information by the Person or authority to which it is disclosed, including by requesting that any such information be filed under seal or otherwise afforded confidential treatment.
4.2 Regulatory Filings. Nothing in this Agreement shall be construed to prohibit or restrict either Party from making any filing, report, or disclosure that is required by applicable law, rule, or regulation, including filings with the U.S. Securities and Exchange Commission ("SEC"), the Federal Trade Commission ("FTC"), the U.S. Department of Justice ("DOJ"), or any applicable state or foreign regulatory authority; provided, however, that the filing Party shall use commercially reasonable efforts to minimize the extent of disclosure of Confidential Information in any such filing and, to the extent permitted by applicable law and the rules and procedures of the relevant governmental authority, shall seek confidential treatment of any Confidential Information contained therein and shall provide advance written notice to the other Party of any such filing to the extent legally permitted.
SECTION 5: NON-DISCLOSURE OF TRANSACTION INFORMATION
Without the prior written consent of the other Party, neither Party nor any of its Representatives shall disclose to any Person (other than its Representatives who have a need to know in connection with the Permitted Purpose and who are bound by the confidentiality obligations hereunder) any Transaction Information, including (a) that Confidential Information has been made available to the Receiving Party or its Representatives hereunder, (b) that discussions or negotiations are taking place between the Parties concerning the Proposed Transaction, (c) the existence or terms of this Agreement, or (d) any terms, conditions, status, or other facts with respect to the Proposed Transaction, including the status of any due diligence, the nature or scope of any proposals, or the identity of any Persons involved in the evaluation or negotiation of the Proposed Transaction. For purposes of this Section 5, the term "Person" specifically includes, without limitation, members of the press and media, industry analysts, financial analysts, rating agencies, employees of either Party or their respective affiliates who do not have a need to know in connection with the Permitted Purpose, and any competitors of either Party. The Parties acknowledge that any public disclosure of the Proposed Transaction could materially and adversely affect the Disclosing Party's business, operations, financial condition, or reputation, and the Parties agree that strict adherence to the provisions of this Section 5 is essential to the willingness of each Party to share Confidential Information with the other.
SECTION 6: NON-SOLICITATION OF EMPLOYEES
6.1 Non-Solicitation. For a period of eighteen (18) months from the Effective Date of this Agreement, neither Party shall, and neither Party shall permit any of its controlled affiliates to, directly or indirectly, solicit for employment, hire, engage as a consultant or independent contractor, or otherwise entice away, any officer, director, or employee of the other Party or any of its subsidiaries with whom the soliciting Party or its Representatives has had contact, or who became known to the soliciting Party or its Representatives, in connection with the evaluation of the Proposed Transaction, without the prior written consent of the other Party. The foregoing restriction shall apply regardless of whether the applicable individual would be employed or engaged on a full-time, part-time, temporary, or contractual basis.
6.2 Exceptions. Notwithstanding Section 6.1, the following shall not constitute a violation of this Section 6:
(a) general solicitations of employment not specifically directed toward the other Party's officers, directors, or employees, including advertisements published in newspapers, trade journals, professional publications, or internet job boards of general circulation, and the hiring of any Person who responds to any such general solicitation without any other direct or indirect solicitation or encouragement by the hiring Party;
(b) the solicitation or hiring of any officer, director, or employee of the other Party who has been terminated by the other Party or its subsidiary at least six (6) months prior to the date of such solicitation or hiring; and
(c) any unsolicited contact initiated solely by an officer, director, or employee of the other Party without any direct or indirect solicitation, encouragement, or inducement by the hiring Party or any of its Representatives.
SECTION 7: NO OBLIGATION TO PROCEED; NO REPRESENTATIONS OR WARRANTIES
7.1 No Obligation. The Parties expressly acknowledge and agree that this Agreement does not obligate either Party to enter into the Proposed Transaction or any other transaction with the other Party, nor does it create any obligation on the part of either Party to continue discussions, negotiations, or due diligence with respect to the Proposed Transaction. Nothing contained in this Agreement shall be construed to create a binding commitment, obligation, or duty on the part of either Party to proceed with any transaction, and no contract or agreement providing for any transaction shall be deemed to exist between the Parties unless and until a definitive agreement has been executed and delivered by both Parties. Either Party may, in its sole and absolute discretion, terminate discussions and negotiations at any time and for any reason, or for no reason, without liability to the other Party, except for obligations arising under this Agreement that, by their terms, survive such termination.
7.2 No Representation or Warranty as to Accuracy. All Confidential Information is provided on an "AS IS" basis, without any representation or warranty of any kind, whether express, implied, statutory, or otherwise, including any representation or warranty as to the accuracy, completeness, reliability, currency, quality, or fitness for any particular purpose of such Confidential Information. The Disclosing Party and its Representatives shall have no liability whatsoever to the Receiving Party or any of its Representatives relating to or arising from the use of the Confidential Information or any errors, omissions, inaccuracies, or incompleteness therein or therefrom. The Receiving Party acknowledges that it shall be entitled to rely solely on the representations and warranties that may be made in a definitive transaction agreement between the Parties, when, as, and if executed and delivered, and then only to the extent, and subject to the terms, conditions, limitations, and qualifications, as may be expressly specified therein. Nothing in this Section 7.2 shall limit or modify either Party's obligations under this Agreement.
SECTION 8: RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION
8.1 Obligation to Return or Destroy. Upon the written request of the Disclosing Party at any time, or upon the termination of discussions and negotiations between the Parties regarding the Proposed Transaction (whether by mutual agreement, unilateral decision, or otherwise), the Receiving Party shall, at the Disclosing Party's election, promptly (and in any event within fifteen (15) business days of such request or termination):
(a) return to the Disclosing Party all Confidential Information and Derived Materials in its possession or in the possession of any of its Representatives, including all originals, copies, reproductions, extracts, and summaries thereof, in whatever form or medium; or
(b) destroy all Confidential Information and Derived Materials in its possession or in the possession of any of its Representatives, including all originals, copies, reproductions, extracts, and summaries thereof, in whatever form or medium, using methods reasonably designed to ensure the permanent and irrecoverable destruction of such materials.
Upon the Disclosing Party's written request, the Receiving Party shall, within five (5) business days following the completion of such return or destruction, certify to the Disclosing Party in writing, signed by a duly authorized officer or representative of the Receiving Party, that such return or destruction has been completed in accordance with this Section 8.1 and that the Receiving Party and its Representatives have not retained any Confidential Information or Derived Materials, except as expressly permitted pursuant to Section 8.2.
8.2 Retention of Copies. Notwithstanding the provisions of Section 8.1, the Receiving Party and its Representatives may retain:
(a) one (1) archival copy of the Confidential Information and Derived Materials, to be maintained by the Receiving Party's legal department or outside counsel, solely for the purpose of monitoring and ensuring compliance with the terms and obligations of this Agreement and for the defense or prosecution of any claims arising hereunder;
(b) copies of Confidential Information or Derived Materials that are required to be retained by applicable law, rule, regulation, or professional standards (including internal compliance, legal hold, regulatory, and recordkeeping requirements imposed by applicable governmental authorities or self-regulatory organizations); and
(c) Confidential Information or Derived Materials that are stored on automated electronic back-up systems, disaster recovery systems, or archival storage systems maintained in the ordinary course of business, provided that the Receiving Party shall not intentionally access such information following the return or destruction of Confidential Information pursuant to Section 8.1, except as required by applicable law or regulation.
Any Confidential Information or Derived Materials retained pursuant to this Section 8.2 shall continue to be subject to all of the terms and conditions of this Agreement, including the confidentiality, non-use, and non-disclosure obligations herein, for the duration of the survival period set forth in Section 12.2. The return or destruction of Confidential Information shall not release the Receiving Party or its Representatives from any other obligation under this Agreement.
SECTION 9: STANDSTILL PROVISION
9.1 Standstill Obligations. For a period of twelve (12) months from the Effective Date (the "Standstill Period"), Harrowgate Private Equity Fund IV LP agrees that, without the prior written invitation or consent of the Board of Directors of VeloPay (acting through a resolution duly adopted by such Board), neither Harrowgate nor any of its affiliates, nor any of its or their respective Representatives acting at its or their direction or on its or their behalf, shall, directly or indirectly:
(a) acquire, or offer, propose, or agree to acquire, directly or indirectly, by purchase, tender offer, exchange offer, merger, business combination, recapitalization, restructuring, or otherwise, any voting securities or direct or indirect rights or options to acquire any voting securities of VeloPay or any of its subsidiaries, or any assets of VeloPay or any of its subsidiaries constituting a significant portion of the consolidated assets of VeloPay and its subsidiaries taken as a whole;
(b) seek or propose to influence or control, in any manner whatsoever, the management, the Board of Directors, or the governance or policies of VeloPay or any of its subsidiaries, including by means of any proxy solicitation, consent solicitation, withhold or vote-no campaign, or request for, or attempt to call, a special meeting of the stockholders of VeloPay;
(c) make any public announcement, proposal, or offer (with or without conditions) with respect to, or otherwise solicit, seek, or offer to effect, any extraordinary transaction involving VeloPay or any of its subsidiaries or any of their respective securities or assets, including any merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, liquidation, dissolution, or similar transaction;
(d) form, join, or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) with any other Persons with respect to the voting securities of VeloPay for the purpose of acquiring, holding, voting, or disposing of such securities; or
(e) request that VeloPay or any of its Representatives amend, waive, or terminate any provision of this Section 9, or make any public statement or disclosure regarding any of the foregoing, or take any action that would reasonably be expected to require VeloPay to make a public announcement regarding the possibility of any of the foregoing.
9.2 Termination of Standstill. The standstill restrictions set forth in Section 9.1 shall automatically and immediately terminate, without any further action by either Party, upon the earliest to occur of: (a) the execution and delivery by the Parties of a definitive agreement with respect to the Proposed Transaction; (b) VeloPay or any of its authorized Representatives publicly announcing that VeloPay is actively soliciting, or has entered into a definitive agreement with respect to, a transaction with a third party that would result in a change of control of VeloPay or the sale of all or substantially all of VeloPay's assets; or (c) the expiration of the Standstill Period. For the avoidance of doubt, the termination of the standstill restrictions pursuant to this Section 9.2 shall not affect or limit any other obligation of the Parties under this Agreement.
SECTION 10: SECURITIES LAWS COMPLIANCE
Each Party acknowledges that the Confidential Information may contain material non-public information concerning VeloPay Systems, Inc. and its securities within the meaning of applicable federal and state securities laws. Each Party hereby agrees that it and its Representatives shall not, directly or indirectly, purchase, sell, or otherwise trade in any securities of VeloPay (including equity securities, debt securities, options, warrants, or derivative instruments), or tip or otherwise communicate such material non-public information to any other Person for the purpose of facilitating trading in such securities, while in possession of material non-public Confidential Information, in violation of applicable federal and state securities laws, including Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder by the SEC, and any applicable state securities laws and regulations. Each Party shall take reasonable steps to inform its Representatives who receive Confidential Information of the restrictions imposed by applicable securities laws concerning the purchase, sale, or other trading of securities while in possession of material non-public information, and concerning the communication of material non-public information to Persons who may trade on the basis of such information. Nothing in this Section 10 shall be deemed to be an admission by either Party that any particular item of Confidential Information constitutes material non-public information for purposes of applicable securities laws.
SECTION 11: REMEDIES
11.1 Irreparable Harm; Injunctive Relief. Each Party acknowledges and agrees that a breach or threatened breach of this Agreement may cause the Disclosing Party irreparable harm and injury for which monetary damages alone would not be an adequate remedy and which would not be readily calculable. Accordingly, each Party agrees that the Disclosing Party shall be entitled to seek equitable relief, including temporary restraining orders, preliminary and permanent injunctions, and orders for specific performance, in addition to any and all other remedies available at law or in equity, without the necessity of (a) proving actual damages, (b) posting any bond, surety, or other security, or (c) demonstrating the inadequacy of monetary damages. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any other rights or remedies available at law, in equity, or otherwise.
11.2 Indemnification. Each Receiving Party shall indemnify, defend, and hold harmless the Disclosing Party and its respective Representatives from and against any and all losses, damages, liabilities, judgments, penalties, costs, and expenses (including reasonable attorneys' fees and disbursements, expert witness fees, and costs of investigation) arising out of or resulting from any breach or violation of this Agreement by the Receiving Party or any of its Representatives. The obligations of indemnification set forth in this Section 11.2 shall survive the termination or expiration of this Agreement in accordance with Section 12.2.
SECTION 12: TERM AND TERMINATION
12.1 Term. This Agreement shall become effective as of the Effective Date and, unless earlier terminated as expressly provided herein or by the mutual written agreement of the Parties, shall remain in full force and effect for a period of two (2) years from the Effective Date (i.e., until October 14, 2026). If, during the term of this Agreement, the Parties execute and deliver a definitive transaction agreement with respect to the Proposed Transaction, the confidentiality obligations set forth in this Agreement shall be superseded by the confidentiality provisions contained in such definitive transaction agreement to the extent, and only to the extent, that such provisions cover the same subject matter as the obligations set forth herein; provided, however, that any provisions of this Agreement that address subject matter not covered by the definitive transaction agreement shall remain in full force and effect in accordance with their terms.
12.2 Survival. The obligations of confidentiality, non-use, and non-disclosure set forth in Sections 2 through 5, the return and destruction obligations set forth in Section 8, the indemnification obligations set forth in Section 11.2, the provisions relating to securities laws compliance set forth in Section 10, and the miscellaneous provisions set forth in Section 13 (to the extent necessary to give effect to the surviving obligations), shall survive the termination or expiration of this Agreement for a period of two (2) years following the date of such termination or expiration. Notwithstanding the foregoing, with respect to any Confidential Information that constitutes a trade secret under applicable law, the confidentiality and non-use obligations hereunder shall continue for so long as such information constitutes a trade secret under applicable law.
SECTION 13: MISCELLANEOUS PROVISIONS
13.1 Governing Law. This Agreement, and all claims, disputes, actions, or causes of action (whether in contract, tort, or otherwise) that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution, or performance of this Agreement, shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of laws rules, provisions, or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
13.2 Jurisdiction and Venue. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery declines to accept jurisdiction over a particular matter, any state court sitting in New Castle County, Delaware, or the United States District Court for the District of Delaware) for the purpose of any suit, action, or proceeding arising out of or relating to this Agreement, and each Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection it may now or hereafter have to the laying of venue of any such suit, action, or proceeding in any such court, and any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum. Each Party agrees that service of process in any such action may be made by delivery of such process in accordance with the notice provisions set forth in Section 13.8 of this Agreement, and each Party irrevocably waives any right to assert that such service is insufficient.
13.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF EITHER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 13.3.
13.4 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral or written agreements, understandings, representations, discussions, negotiations, commitments, and communications between the Parties relating to the same subject matter. There are no restrictions, promises, covenants, warranties, representations, or undertakings between the Parties other than those expressly set forth or referred to in this Agreement. No modification, amendment, supplement, or waiver of any provision of this Agreement shall be effective unless made in a writing specifically referencing this Agreement and signed by a duly authorized representative of each Party. No oral modification, amendment, or waiver of any provision of this Agreement shall be effective under any circumstances.
13.5 Assignment. Neither Party may assign or transfer this Agreement, or any of its rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that Harrowgate may, without the consent of VeloPay, assign this Agreement to any affiliate of Harrowgate formed for the purposes of evaluating or consummating the Proposed Transaction, including any acquisition subsidiary, holding company, or co-investment vehicle, so long as Harrowgate remains primarily liable for the performance of all obligations of such assignee hereunder. Any attempted assignment in violation of this Section 13.5 shall be null and void and of no force or effect. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
13.6 Waiver. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. No waiver of any breach or default under this Agreement shall be deemed a waiver of any subsequent breach or default. All rights and remedies existing under this Agreement are cumulative and are not exclusive of any rights or remedies otherwise available.
13.7 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions shall continue in full force and effect. In the event that any provision is held to be invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify such provision so as to give effect to the original intent of the Parties to the maximum extent permitted by applicable law. If such modification is not possible, the invalid, illegal, or unenforceable provision shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable while preserving the original intent of the Parties to the greatest extent practicable.
13.8 Notices. All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and effective: (a) upon delivery, if delivered personally (with written confirmation of receipt); (b) on the next business day after deposit with a nationally recognized overnight courier service (with confirmed delivery and tracking); or (c) upon transmission, if sent by electronic mail (with confirmation of receipt by the recipient, which may include an automated read receipt or a responsive electronic mail), in each case addressed as follows:
If to Harrowgate:
Harrowgate Private Equity Fund IV LP 300 King Street, Suite 4200 Wilmington, Delaware 19801
Attention: Priya Deshmukh, Managing Partner
Email: p.deshmukh@harrowgatecapital.com
With a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 787 Seventh Avenue, 38th Floor New York, New York 10019
Attention: Sandra Tung
Email: stung@calderwoodharkness.com
If to VeloPay:
VeloPay Systems, Inc. 1455 Innovation Parkway, Suite 800 Austin, Texas 78759
Attention: Danielle Moreau, General Counsel
Email: d.moreau@velopay.com
With a copy (which shall not constitute notice) to:
Whitford Jessup & Crane LLP 600 Congress Avenue, Suite 2400 Austin, Texas 78701
Attention: Rebecca Thornton-Hayes
Email: rthornton-hayes@wjclaw.com
Either Party may change its address for notice purposes by giving the other Party written notice of such change in accordance with this Section 13.8.
13.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Signatures delivered by facsimile transmission or by electronic means (including in portable document format (PDF) or by any electronic signature complying with the U.S. Federal ESIGN Act of 2000 or the Uniform Electronic Transactions Act) shall be deemed original signatures for all purposes and shall have the same legal force and effect as original ink signatures.
13.10 No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties and their respective Representatives, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, the Representatives of each Party are intended third-party beneficiaries of the indemnification and limitation of liability provisions set forth in Sections 7.2 and 11.2, and such Representatives shall be entitled to enforce such provisions directly, subject to the terms and conditions hereof.
13.11 Construction. The headings and captions in this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement. Unless the context otherwise requires, references in this Agreement to "Section" or "Sections" refer to the corresponding Section or Sections of this Agreement. The words "herein," "hereof," "hereunder," and "hereto" refer to this Agreement as a whole and not to any particular provision of this Agreement. References to "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation" regardless of whether such phrase is expressly stated. The Parties have participated jointly in the negotiation and drafting of this Agreement, and in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Mutual Confidentiality and Non-Disclosure Agreement to be executed by their duly authorized representatives as of the date first written above.
HARROWGATE PRIVATE EQUITY FUND IV LP
By: Harrowgate Capital Management IV LLC, its General Partner
By: ________
Name: Priya Deshmukh
Title: Managing Partner
Date: ________
VELOPAY SYSTEMS, INC.
By: ________
Name: Nathan Aldridge
Title: Chief Executive Officer
Date: ________
Drafted by Calderwood & Harkness LLP as counsel to Harrowgate Private Equity Fund IV LP