Confidentiality from Stockholders Agreement
Pursuant to a Stock Purchase Agreement dated as of the date hereof (the US Purchase Agreement) by and among the Company, Advent Funds (as defined herein), Brooke Funds (as defined herein), Highland Funds (as defined herein), Lululemon Athletica USA Inc., a Nevada corporation (USA), Oyoyo Holdings, Inc. a company formed under the laws of British Columbia (OHI), LIPO Investments (USA), Inc., a company formed under the laws of British Columbia (LIPO (USA)), Dennis Wilson (DW), LIPO (USA) agreed to sell all of the issued and outstanding shares of USA participating preferred stock to the Company in exchange for shares of Series TS Preferred Stock and DW and OHI agreed to sell all of the issued and outstanding shares of USA non-participating preferred stock to the Advent Funds, Brooke Funds and Highland Funds in exchange for cash.
Confidentiality. Each Holder hereby agrees that any information supplied or made available to it pursuant to this Agreement and any other confidential or proprietary information relating to the Company in its possession, including accounting information, commercial data and information relating to intellectual property of the Company (collectively, the Information), will be kept confidential and shall not, without the prior written consent of the Company, be disclosed by such Holder or its Affiliates, directors, officers, partners, employees, agents, advisors and other representatives (collectively, the Representatives), in any manner whatsoever, in whole or in part, and shall not be used by such Holder or its Representatives other than in connection with such Holders evaluation of its investment in the Company, provided, however, that such Holder or any of its Representatives may make such disclosure to the extent that (a) the Information being disclosed is otherwise generally available to the public other than as a result of a disclosure by any Holder or its Representatives, (b) such disclosure is required by any governmental body, agency, official or authority having jurisdiction over such Holder, or (c) such disclosure, based upon the advice of legal counsel of such Holder or Representative, is otherwise required by law or statute. Notwithstanding the foregoing, each Advent Holder and Highland Holder may disclose Information to its Representatives and its limited partners so long as such Information is identified as confidential to such Representatives and limited partners. Each such Holder shall be responsible for any breach of this Section 12.3 by its Representatives. If a Holder or any of its Representatives is required by subpoena or legal process to disclose any of the Information, to the extent legally permitted, such Holder will notify the Company promptly in writing so that the Company may seek an appropriate protective order or other appropriate remedy (and if the Company seeks such an order, such Holder will provide such cooperation as the Company shall reasonably request at the Companys sole cost and expense). If, in the absence of a protective order or other remedy, such Holder or any of its Representatives are nonetheless legally compelled to disclose such Information, such Holder or its Representatives, as the case may be, will furnish only that portion of the Information which they are advised by counsel is legally required and will give the Company prior written notice (unless prohibited by law) of the Information to be disclosed as far in advance as reasonably practicable and exercise commercially reasonable efforts to obtain confidential treatment for the Information. Each Holder agrees to promptly return all Information to the Company or to destroy such Information promptly after it sells, disposes of or otherwise Transfers all of its Shares to Persons who are not Affiliates of such Holder.