MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
February 10, 2025
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is entered into as of February 10, 2025 (the "Effective Date"), by and between:
Cascade Retail Holdings Inc., a Delaware corporation, with its principal offices located at 4500 Elliott Avenue West, Suite 3200, Seattle, Washington 98119 ("Cascade" or "CRH");
and
NovaMart Global Inc., a Delaware corporation, with its principal offices located at 1100 Congress Avenue, Suite 800, Austin, Texas 78701 ("NovaMart" or "NMG").
Cascade and NovaMart are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Cascade and NovaMart are exploring a potential strategic transaction involving the possible acquisition by Cascade of all of the outstanding capital stock of NovaMart (the "Proposed Transaction" or the "Transaction");
WHEREAS, in connection with the evaluation of the Proposed Transaction, each Party may disclose to the other Party certain confidential, proprietary, and non-public information regarding its business, operations, financial condition, technology, and strategic plans;
WHEREAS, the Parties desire to set forth the terms and conditions under which such confidential information will be disclosed, received, used, and protected by the Receiving Party and its Representatives;
WHEREAS, each Party acknowledges that the unauthorized disclosure or misuse of Confidential Information would cause irreparable harm to the Disclosing Party and its business, and that adequate monetary damages would be difficult or impossible to ascertain; 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 information, data, documents, agreements, materials, analyses, studies, compilations, projections, forecasts, reports, memoranda, notes, and other information (whether written, oral, electronic, visual, or in any other form) that is disclosed by or on behalf of either Party (in such capacity, the "Disclosing Party") to the other Party (in such capacity, the "Receiving Party") or any of its Representatives in connection with the evaluation, negotiation, or potential consummation of the Proposed Transaction. Without limiting the generality of the foregoing, Confidential Information includes, without limitation, the following categories of information:
(a) Business and Financial Information, including revenue, earnings before interest, taxes, depreciation, and amortization ("EBITDA"), gross merchandise value, customer acquisition costs, customer lifetime value metrics, customer data, seller data, financial statements (whether audited or unaudited), financial projections, budgets, capital expenditure plans, cash flow models, working capital analyses, and business plans;
(b) Technical and Operational Information, including technology, software, source code, object code, algorithms, machine learning models, data architectures, trade secrets, patents, patent applications, trademarks, service marks, copyrights, intellectual property of any kind, fulfillment center operations and layouts, logistics networks, distribution models, supply chain configurations, warehouse management systems, IT infrastructure, cybersecurity protocols, and disaster recovery plans;
(c) Customer and Vendor Information, including customer lists, seller lists, supplier agreements, commercial contracts, vendor terms, pricing terms, discount structures, rebate arrangements, purchasing volumes, inventory management data, and customer or vendor correspondence;
(d) Personnel Information, including employee lists, compensation data (including base salary, bonus, equity incentive, and benefits information), organizational charts, employment agreements, non-competition and non-solicitation agreements, severance arrangements, key employee retention plans, and human resources policies and procedures;
(e) Legal and Regulatory Information, including pending or threatened litigation, arbitration, or administrative proceedings, regulatory filings, compliance matters, consent decrees, regulatory correspondence, tax returns, tax positions, tax opinions, and insurance policies and claims;
(f) Strategic Plans, including market analyses, competitive assessments, acquisition strategies and pipeline, product roadmaps, technology development plans, integration plans, synergy estimates, and go-to-market strategies; and
(g) Derivative Materials, meaning any notes, analyses, compilations, studies, interpretations, summaries, extracts, or other documents prepared by the Receiving Party or its Representatives that contain, reflect, or are based upon, in whole or in part, Confidential Information of the Disclosing Party.
For the avoidance of doubt, Confidential Information also includes information regarding the existence, terms, conditions, and status of any discussions or negotiations between the Parties concerning the Proposed Transaction, as well as the identity of the Parties as participants in such discussions or negotiations.
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 in the possession of the Receiving Party prior to its disclosure by the Disclosing Party or the Disclosing Party's Representatives, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality obligation to the Disclosing Party with respect to such information;
(c) is or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party's Representatives, provided that such source is not known by the Receiving Party to be bound by a confidentiality obligation to the Disclosing Party with respect to such information; or
(d) is independently developed by the Receiving Party or its Representatives without reference to or use of the Confidential Information of the Disclosing Party, as established by the Receiving Party's contemporaneous written records.
The burden of establishing the applicability of any of the foregoing exclusions shall rest with the Receiving Party.
1.3 "Representatives." As used in this Agreement, "Representatives" means, with respect to each Party, its directors, officers, employees, attorneys, accountants, financial advisors, investment bankers, consultants, agents, and other advisors and representatives who have a need to know the Confidential Information for purposes of evaluating, negotiating, or, if applicable, consummating the Proposed Transaction.
(a) With respect to Cascade, Representatives include, without limitation: (i) its legal counsel, Calderwood & Harkness LLP, with offices at 599 Lexington Avenue, 38th Floor, New York, New York 10022; (ii) its financial advisor, Hargrove Mead & Co., with offices at 383 Madison Avenue, 22nd Floor, New York, New York 10179; and (iii) its accounting and tax advisor, Whitmore & Paige LLP, with offices at 100 Federal Street, Suite 2500, Boston, Massachusetts 02110.
(b) With respect to NovaMart, Representatives include, without limitation: (i) its legal counsel, Calloway, Brandt & Loewe LLP, with offices at 600 Travis Street, Suite 4500, Houston, Texas 77002; (ii) its financial advisor, Pemberton Strauss Advisory LLC, with offices at 1345 Avenue of the Americas, 30th Floor, New York, New York 10105; and (iii) its stockholders and their respective advisors, to the extent reasonably necessary in connection with the evaluation of or obtaining consent for the Proposed Transaction.
(c) Representatives also include potential financing sources, lenders, and insurance providers who are provided Confidential Information subject to the terms and conditions set forth in Section 3.3 of this Agreement.
1.4 "Person." As used in this Agreement, "Person" means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental entity or instrumentality, or any other entity of any kind.
1.5 "Affiliate." As used in this Agreement, "Affiliate" means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
SECTION 2: USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION
2.1 Permitted Use. Each Receiving Party shall use the Confidential Information of the Disclosing Party solely for the purpose of evaluating, negotiating, and, if applicable, consummating the Proposed Transaction (the "Permitted Purpose"). Neither the Receiving Party nor any of its Representatives shall use the Confidential Information of the Disclosing Party for any other purpose whatsoever, including, without limitation, for competitive advantage, to solicit or divert any customers, suppliers, vendors, sellers, or employees of the Disclosing Party, or to develop or improve any products, services, or business strategies unrelated to the Proposed Transaction.
2.2 Non-Disclosure Obligation. The Receiving Party shall not disclose, reveal, publish, or otherwise make available any Confidential Information of the Disclosing Party to any Person other than its Representatives who: (a) have a need to know such information for the Permitted Purpose; and (b) have been informed of the confidential nature of such information and have agreed to be bound by the terms of this Agreement or are otherwise bound by professional or legal obligations of confidentiality that are at least as restrictive as those set forth herein. The Receiving Party shall be fully responsible for any breach of this Agreement by any of its Representatives, and any such breach by a Representative shall be deemed to be a breach by the Receiving Party. Each Party agrees that it will take all reasonable measures to ensure compliance by its Representatives with the terms and conditions of this Agreement, including by establishing appropriate access controls, security measures, and information-handling procedures.
2.3 Standard of Care. The Receiving Party shall protect the Confidential Information of the Disclosing Party using the same degree of care that the Receiving Party uses to protect its own confidential information of a similar nature and importance, but in no event less than a reasonable degree of care. Each Party represents that it maintains commercially reasonable physical, technical, and administrative safeguards to protect confidential business information in its possession or control.
2.4 No Disclosure of Transaction Discussions. 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 for the Permitted Purpose) any of the following:
(a) the fact that Confidential Information has been made available to, or received by, the Receiving Party or any of its Representatives;
(b) the fact that discussions or negotiations are taking place, or have taken place, between the Parties concerning the Proposed Transaction;
(c) any of the terms, conditions, or other facts with respect to the Proposed Transaction, including the status thereof, the identity of the Parties, or the scope, structure, or timing of the Proposed Transaction; or
(d) the existence of this Agreement or any of its terms.
Notwithstanding the foregoing, either Party may make disclosures to the extent required by applicable law, regulation, or legal process, subject to the provisions of Section 5 of this Agreement.
SECTION 3: PERMITTED DISCLOSURES
3.1 Disclosure to Representatives. Each Party may disclose Confidential Information of the other Party to its Representatives in accordance with the requirements of Section 2.2 of this Agreement. Each Party shall maintain a current list of all Representatives to whom Confidential Information of the other Party has been disclosed, and shall provide such list to the Disclosing Party upon the Disclosing Party's reasonable written request. Such list shall include the name, title, and organizational affiliation of each Representative to whom disclosure was made.
3.2 Disclosure to Board Members and Stockholders.
(a) Cascade may disclose Confidential Information of NovaMart to its Board of Directors (including, without limitation, Margaret "Meg" Alderton, Chief Executive Officer of Cascade) as reasonably necessary for the Board's evaluation, consideration, and approval of the Proposed Transaction. Members of the Cascade Board of Directors shall be deemed Representatives for purposes of this Agreement.
(b) NovaMart may disclose Confidential Information of Cascade to its Board of Directors, its stockholders (including, without limitation, Ridgeline Equity Partners, LP and Brindoval Ventures Fund III, LP), and their respective advisors, in each case to the extent reasonably necessary for stockholder approval, consent, or other action in connection with the evaluation and potential consummation of the Proposed Transaction; provided, however, that each such Person shall be bound by obligations of confidentiality no less restrictive than those set forth in this Agreement prior to receiving any Confidential Information. NovaMart shall be responsible for any breach of such obligations by any such Person, and any such breach shall be deemed a breach by NovaMart under this Agreement.
3.3 Disclosure to Financing Sources. Cascade may disclose Confidential Information of NovaMart to potential financing sources, lenders, arrangers, underwriters, and insurance providers (and their respective counsel, advisors, and agents) in connection with obtaining debt financing, equity financing, insurance, or other financial accommodations necessary or advisable for the consummation of the Proposed Transaction; provided, however, that each such Person shall have executed a confidentiality agreement or undertaking with terms and conditions no less restrictive than those set forth in this Agreement, or shall be otherwise bound by professional obligations of confidentiality (including obligations arising under applicable legal or regulatory requirements governing such entities). Cascade shall provide NovaMart with prompt written notice of any disclosure made to a financing source pursuant to this Section 3.3, identifying the recipient entity, upon NovaMart's reasonable request.
SECTION 4: STANDSTILL
4.1 Standstill Obligations of Cascade. For a period of twelve (12) months from the Effective Date of this Agreement (the "Standstill Period"), unless specifically invited in writing by the Board of Directors of NovaMart, Cascade shall not, and shall cause its controlled Affiliates and Representatives not to, directly or indirectly:
(a) acquire, offer to acquire, or agree to acquire, by purchase, tender offer, exchange offer, merger, business combination, or in any other manner, beneficial ownership of any securities (including any options, warrants, or other rights to acquire securities) or assets of NovaMart or any of its subsidiaries, other than as expressly contemplated by the Proposed Transaction;
(b) propose, seek, or offer to effect, or participate in or facilitate, any tender offer, exchange offer, merger, consolidation, business combination, restructuring, recapitalization, liquidation, dissolution, or similar extraordinary transaction involving NovaMart or any of its subsidiaries;
(c) make, or in any way participate in, any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the United States Securities and Exchange Commission (the "SEC")) or consents to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of NovaMart;
(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 respect to any voting securities of NovaMart;
(e) seek to place a representative on the Board of Directors of NovaMart, or seek the removal of any member of the Board of Directors of NovaMart, other than as expressly contemplated by the Proposed Transaction or any definitive agreement entered into in connection therewith;
(f) publicly disclose any intention, plan, or arrangement inconsistent with any of the foregoing restrictions, or take any action that would reasonably be expected to require NovaMart or Cascade to make a public announcement regarding any of the foregoing; or
(g) advise, assist, encourage, act as a financing source for, or enter into any discussions, negotiations, agreements, or arrangements with, any other Person in connection with any of the foregoing actions or activities.
4.2 Termination of Standstill. The standstill restrictions set forth in Section 4.1 of this Agreement shall automatically terminate upon the earliest to occur of: (a) the execution and delivery by both Parties of a definitive agreement for the Proposed Transaction; (b) NovaMart entering into a definitive agreement for any alternative transaction with a third party (including any merger, sale of stock, sale of substantially all assets, or similar transaction); or (c) the expiration of the Standstill Period. Notwithstanding the foregoing, if this Agreement is terminated pursuant to Section 9 of this Agreement and no definitive agreement for the Proposed Transaction has been executed and delivered by both Parties prior to such termination, the standstill restrictions set forth in Section 4.1 shall continue in full force and effect for the remainder of the Standstill Period (i.e., through and including the date that is twelve (12) months from the Effective Date).
SECTION 5: LEGALLY COMPELLED DISCLOSURE
5.1 Notice Requirement. If the Receiving Party or any of its Representatives is requested or required by applicable law, statute, regulation, rule, legal or administrative proceeding, subpoena, civil investigative demand, interrogatory, request for production, or other governmental, regulatory, or judicial request or process (including any requirement imposed by the SEC, the Federal Trade Commission, the Department of Justice, or any court of competent jurisdiction) to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, to the extent legally permitted and reasonably practicable, provide the Disclosing Party with prompt written notice of such request or requirement prior to making any such disclosure. Such notice shall include, to the extent available, the nature of the request or requirement, the identity of the requesting party or entity, and the Confidential Information sought, so that the Disclosing Party may seek a protective order, motion to quash, or other appropriate remedy and/or waive compliance with the relevant provisions of this Agreement.
5.2 Cooperation. The Receiving Party shall cooperate with the Disclosing Party, at the Disclosing Party's sole cost and expense, in seeking a protective order, motion to quash, or other appropriate remedy to prevent or limit the disclosure of Confidential Information. If, after exercising commercially reasonable efforts, a protective order or other appropriate remedy is not obtained, or the Disclosing Party waives compliance with the provisions of this Section 5, the Receiving Party or its Representatives may 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, including by requesting that any tribunal or governmental authority receiving such information treat it as confidential and under seal to the maximum extent permitted by applicable law.
5.3 Securities Filings. Each Party acknowledges that Cascade is a publicly traded company (listed on the Nasdaq Global Select Market under the ticker symbol "CRHI") and may have reporting and disclosure obligations under the Securities Act of 1933, the Exchange Act, and the rules and regulations promulgated thereunder by the SEC. Notwithstanding the foregoing, any disclosure of Confidential Information by Cascade pursuant to such obligations shall be limited to the minimum extent required by applicable law and shall be subject to the notice provisions of this Section 5 to the extent practicable. The Parties shall cooperate in good faith to coordinate the timing and content of any such disclosure and to seek confidential treatment for Confidential Information included in any such filing to the fullest extent available.
SECTION 6: NON-SOLICITATION OF EMPLOYEES
6.1 Non-Solicitation Covenant. For a period of eighteen (18) months from the Effective Date of this Agreement (or, if the Proposed Transaction is consummated, for a period of eighteen (18) months from the closing date thereof), neither Party shall, and each Party shall cause its controlled Affiliates not to, directly or indirectly, solicit, recruit, hire, or attempt to solicit, recruit, or hire any employee of the other Party (or any individual who was an employee of the other Party within the six (6) months preceding the date of such solicitation, recruitment, or hiring) with whom the soliciting Party or any of its Representatives first became aware of or had contact as a result of the evaluation of the Proposed Transaction or the exchange of Confidential Information pursuant to this Agreement. For the avoidance of doubt, the restrictions set forth in this Section 6.1 shall apply with respect to NovaMart's approximately 2,400 employees across all locations, including, without limitation, Julian Reeves (Founder and Chief Executive Officer), Priya Narasimhan (Co-Founder and Chief Technology Officer), Douglas "Doug" Whitfield (Chief Financial Officer), and Amanda Trevino (General Counsel), as well as with respect to Cascade's employees, including, without limitation, its executive officers and senior management team.
6.2 Exceptions. The restrictions set forth in Section 6.1 of this Agreement shall not apply to:
(a) general solicitations of employment published in a newspaper, trade journal, internet job board, social media platform, website, or similar medium of general circulation that are not specifically directed at or targeted toward the employees of the other Party;
(b) the hiring of any individual who responds to a general solicitation described in clause (a) above, so long as such individual has not been otherwise specifically solicited, contacted, or recruited by or on behalf of the hiring Party in violation of Section 6.1;
(c) the hiring of any individual whose employment with the other Party has been terminated (whether voluntarily by the individual or involuntarily by the other Party) prior to the commencement of any solicitation, recruitment, or hiring discussions with such individual by the hiring Party; or
(d) any hiring, employment, or retention arrangements that are expressly contemplated by the Proposed Transaction, including post-closing employment agreements, retention bonus arrangements, equity rollover arrangements, or management incentive plans negotiated in connection with the Proposed Transaction.
SECTION 7: NO REPRESENTATIONS OR WARRANTIES; NO OBLIGATION TO PROCEED
7.1 No Warranty of Accuracy or Completeness. Each Party acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy, completeness, reliability, or sufficiency of the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its Representatives relating to or resulting from the use of the Confidential Information or any errors therein or omissions therefrom. The Receiving Party agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that only those representations and warranties that are made in a definitive agreement for the Proposed Transaction, when, as, and if executed and delivered, and subject to such limitations and restrictions as may be specified therein, shall have any legal effect.
7.2 No Obligation to Proceed. Nothing in this Agreement shall be construed as obligating either Party to: (a) enter into a definitive agreement or any other agreement with respect to the Proposed Transaction or any other transaction; (b) consummate the Proposed Transaction or any other transaction; or (c) continue discussions or negotiations regarding the Proposed Transaction at any time or for any particular duration. Each Party reserves the right, in its sole and absolute discretion and at any time, for any reason or no reason, to terminate discussions and negotiations regarding the Proposed Transaction without liability to the other Party, except for obligations arising under this Agreement, which shall survive in accordance with their terms. No contract or agreement providing for the Proposed Transaction shall be deemed to exist between the Parties unless and until a definitive written agreement has been fully executed and delivered by both Parties, and neither Party shall have any obligation to the other Party with respect to the Proposed Transaction unless and until such definitive agreement has been so executed and delivered.
7.3 Reservation of Rights. All Confidential Information disclosed by the Disclosing Party shall remain the sole and exclusive property of the Disclosing Party. Nothing in this Agreement shall be construed as granting or implying any license or other right to the Receiving Party or any of its Representatives under any patent, trademark, service mark, copyright, trade secret, or other intellectual property right of the Disclosing Party, whether by estoppel, implication, or otherwise. The disclosure of Confidential Information hereunder shall not constitute or be deemed to constitute an assignment, transfer, or conveyance of any ownership interest in any Confidential Information or any intellectual property rights therein.
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 or expiration of this Agreement, or upon the termination of discussions or negotiations regarding the Proposed Transaction (whichever occurs earliest), the Receiving Party and its Representatives shall promptly, and in any event within fifteen (15) business days of such request, termination, or expiration:
(a) return to the Disclosing Party all originals and copies of Confidential Information (including all documents, notes, reports, data, electronic files, and other materials in any form or medium) in their possession or control; or
(b) destroy all such Confidential Information and all Derivative Materials in their possession or control, and provide to the Disclosing Party a written certification of such destruction, signed by an authorized officer of the Receiving Party, confirming that the Receiving Party and its Representatives have complied with the destruction obligations set forth herein.
The choice between return and destruction pursuant to clauses (a) and (b) above shall be at the election of the Receiving Party, subject to the Disclosing Party's reasonable objection (in which case the Parties shall cooperate in good faith to determine an appropriate disposition). Destruction of electronic materials shall be accomplished by permanent deletion or erasure, using industry-standard methods that render the information unrecoverable.
8.2 Exceptions — Retained Copies. Notwithstanding the provisions of Section 8.1:
(a) the Receiving Party and its Representatives may retain copies of Confidential Information to the extent required by applicable law, rule, regulation, or any applicable order of a court or governmental authority, or to the extent required by bona fide internal compliance, legal hold, or document retention policies, or as may be stored on automatic computer backup, archival, or disaster recovery systems in the ordinary course of business, provided that no effort is made to access or use such retained Confidential Information for any purpose other than compliance with such legal, regulatory, or policy requirements; and
(b) the Receiving Party's legal counsel, including Calderwood & Harkness LLP (on behalf of Cascade) and Calloway, Brandt & Loewe LLP (on behalf of NovaMart), may retain one (1) archival copy of Confidential Information solely for compliance, conflict-checking, and professional responsibility purposes.
Any Confidential Information retained pursuant to this Section 8.2 shall remain subject to all of the confidentiality and non-use obligations of this Agreement for the duration of the Surviving Period set forth in Section 9.2, and shall not be accessed or used for any purpose other than as expressly permitted herein.
SECTION 9: TERM AND TERMINATION
9.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect until the earlier of: (a) the execution and delivery by both Parties of a definitive agreement for the Proposed Transaction (at which time the terms of such definitive agreement, including any confidentiality provisions contained therein, shall govern the treatment of confidential information, and this Agreement shall be superseded solely to the extent expressly provided in such definitive agreement); or (b) two (2) years from the Effective Date (i.e., February 10, 2027), unless this Agreement is earlier terminated by either Party upon not less than thirty (30) days' prior written notice to the other Party delivered in accordance with Section 11.4.
9.2 Surviving Obligations. Notwithstanding the termination or expiration of this Agreement for any reason, the following obligations shall survive termination or expiration and remain in full force and effect for a period of two (2) years from the date of such termination or expiration (the "Surviving Period"):
(a) the confidentiality and non-use obligations set forth in Section 2 of this Agreement;
(b) the non-solicitation obligations set forth in Section 6 of this Agreement, to the extent of their stated duration (i.e., eighteen (18) months from the Effective Date or, if the Proposed Transaction is consummated, eighteen (18) months from the closing date thereof); and
(c) the obligations regarding the return and destruction of Confidential Information set forth in Section 8 of this Agreement.
Notwithstanding the foregoing, with respect to any Confidential Information that constitutes a trade secret under applicable law (including the Delaware Uniform Trade Secrets Act or the Defend Trade Secrets Act of 2016), the confidentiality obligations of this Agreement shall continue for so long as such information retains its status as a trade secret under applicable law, even if such period extends beyond the Surviving Period.
SECTION 10: REMEDIES
10.1 Irreparable Harm. Each Party acknowledges and agrees that a breach or threatened breach of this Agreement by the Receiving Party or any of its Representatives may cause the Disclosing Party irreparable harm and injury for which monetary damages alone would not be an adequate remedy. The Parties further acknowledge that the harm caused by such a breach would be difficult, if not impossible, to quantify with precision.
10.2 Injunctive Relief. In addition to any other remedy available at law or in equity, the Disclosing Party shall be entitled to seek and obtain equitable relief, including temporary restraining orders, preliminary and permanent injunctions, and specific performance, in any court of competent jurisdiction to prevent or restrain any breach or threatened breach of this Agreement, without the necessity of proving actual damages, posting any bond, or furnishing any other security. Each Party acknowledges that the entry of such equitable relief is an appropriate and essential remedy to protect the Disclosing Party's Confidential Information and that the Disclosing Party would suffer irreparable injury absent such relief.
10.3 Cumulative Remedies. The rights and remedies of each Party under this Agreement are cumulative and shall be in addition to, and not in limitation of, any other rights and remedies available to such Party at law, in equity, or otherwise. The exercise of any right or remedy by a Party shall not be deemed an election of remedies or a waiver of any other right or remedy.
SECTION 11: MISCELLANEOUS
11.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-law rules or provisions (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.
11.2 Jurisdiction and Venue. Each Party hereby irrevocably and unconditionally submits, for itself and its property, 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, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware) for the adjudication of any dispute, claim, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, or for recognition or enforcement of any judgment relating thereto. Each Party hereby irrevocably and unconditionally: (a) agrees not to commence any such action or proceeding except in such courts; (b) agrees that any claim in respect of any such action or proceeding may be heard and determined in any such court; (c) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any such action or proceeding in any such court; and (d) waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of any such action or proceeding in any such court. Each Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.
11.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF EITHER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT OF THIS AGREEMENT.
11.4 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: (a) when delivered personally; (b) one (1) business day after being sent by nationally recognized overnight courier service (such as Severin Partners LLC or Halcyon Partners LLC), with delivery confirmed; or (c) when sent by email (with confirmation of receipt by the recipient, which confirmation shall not be unreasonably withheld or delayed), in each case addressed to the respective Party at the address set forth below (or at such other address as may be designated by such Party by written notice to the other Party in accordance with this Section 11.4):
If to Cascade:
Elena Vasquez-Bright, General Counsel Cascade Retail Holdings Inc. 4500 Elliott Avenue West, Suite 3200 Seattle, Washington 98119
Email: evasquez-bright@cascaderhi.com
with a copy to (which shall not constitute notice):
Harrison Wexford Calderwood & Harkness LLP 599 Lexington Avenue, 38th Floor New York, New York 10022
Email: hwexford@calderwoodharkness.com
If to NovaMart:
Amanda Trevino, General Counsel NovaMart Global Inc. 1100 Congress Avenue, Suite 800 Austin, Texas 78701
Email: atrevino@novamartglobal.com
with a copy to (which shall not constitute notice):
Richard Calloway Calloway, Brandt & Loewe LLP 600 Travis Street, Suite 4500 Houston, Texas 77002
Email: rcalloway@cbllaw.com
11.5 Assignment. Neither Party may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, and any purported assignment or transfer in violation of this Section 11.5 shall be null and void; provided, however, that Cascade may, without the prior written consent of NovaMart, assign this Agreement to any wholly-owned subsidiary or Affiliate of Cascade, provided that (a) Cascade provides NovaMart with written notice of such assignment promptly following the effectiveness thereof, and (b) Cascade shall remain primarily liable for the performance of all obligations of such assignee under this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
11.6 Amendment and Waiver. This Agreement may not be amended, modified, supplemented, or otherwise changed except by a written instrument duly executed by authorized representatives of both Parties. No waiver of any provision of this Agreement or any right, power, or remedy hereunder shall be effective unless set forth in a written instrument signed by the Party granting such waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
11.7 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, negotiations, representations, warranties, and discussions, whether oral or written, between the Parties relating to such subject matter. There are no representations, warranties, covenants, or other agreements between the Parties relating to the subject matter hereof other than those expressly set forth or referred to in this Agreement.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable under applicable law, the remaining provisions of this Agreement shall continue in full force and effect, and the invalid, illegal, or unenforceable provision shall be reformed, modified, or interpreted to the minimum extent necessary to render it valid, legal, and enforceable while preserving the original intent of the Parties to the greatest extent possible. If such reformation, modification, or interpretation is not possible, such provision shall be severed from this Agreement, and the remaining provisions shall be enforced as if such severed provision had not been included herein.
11.9 Counterparts. This Agreement may be executed in one or more counterparts (including by means of facsimile transmission or electronic transmission in portable document format (PDF)), each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile or electronic transmission shall be as effective as delivery of a manually executed counterpart.
11.10 No Third-Party Beneficiaries. This Agreement is entered into for the sole benefit of the Parties and their respective Representatives, successors, and permitted assigns, and nothing in this Agreement, whether express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, remedy, or claim of any nature whatsoever under or by reason of this Agreement.
11.11 Construction. The headings and captions contained in this Agreement are for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Agreement. Unless the context otherwise requires: (a) references to "Sections" refer to sections of this Agreement; (b) references to "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole; (d) the use of the singular shall include the plural and vice versa; and (e) references to a "Party" include such Party's successors and permitted assigns. This Agreement has been jointly negotiated and drafted by the Parties and their respective counsel, and no provision of this Agreement shall be construed against any Party on the basis that such Party was the drafter thereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused this Mutual Confidentiality and Non-Disclosure Agreement to be duly executed by their respective authorized representatives as of the date first written above.
CASCADE RETAIL HOLDINGS INC.
By: ________
Name: Elena Vasquez-Bright
Title: General Counsel
Date: February 10, 2025
NOVAMART GLOBAL INC.
By: ________
Name: Amanda Trevino
Title: General Counsel
Date: February 10, 2025