Confidentiality Agreement

CONFIDENTIALITY/MUTUAL NON-DISCLOSURE AGREEMENT

This Mutual Non-Disclosure Agreement (“NDA”) is made as of the Effective Date set forth below by and between DREW LOFSTAD and BRIAN COCHRUM, individuals (“D&B”) and the individuals or entity set forth below as the “Second Party”.

Second Party:  The entity/individual represented in the fields provided.

Effective Date:  The date of submission of online request.

BUSINESS PURPOSE: In order to explore the mutual benefits of a business relationship (the “Business Purpose”), the Second Party and D&B recognize that there is a need to disclose to one another certain confidential information of each party to be used only for the Business Purpose and to protect such confidential information from unauthorized use and disclosure.

CONSIDERATION: In consideration of each party’s disclosure of such information, the parties agree to be bound by the terms of this NDA.

INFORMATION COVERED: This NDA will apply the following types of information disclosed by one party to the other party: (a) any information identified on Exhibit A, if attached hereto; (b) any information, regardless of form, proprietary to or maintained in confidence by either party, including, without limitation, any information, technical data or know-how relating to business plans or opportunities, business strategies, marketing plans or opportunities, marketing strategies, future projects or products, projects or products under consideration, procedures, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by either party or on its behalf whether directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the other party or any of its employees or agents; and (c) any other information marked as confidential or, if not disclosed in writing, identified as confidential at the time of disclosure and summarized in a written document that is marked confidential and delivered within thirty (30) days after the date of the disclosure (collectively, “Confidential Information”).

OBLIGATIONS:   The  receiving  party  (“Recipient”)  agrees that  (a)  it  will  treat  all Confidential Information of the other party with the same degree of care as such Recipient accords to its own Confidential Information, but in no case less than reasonable care; (b) it will not use, disseminate, or in any way disclose any Confidential Information of the disclosing party (“Discloser”) except to the extent necessary for internal evaluations in connection with negotiations, discussions, and consultations with personnel or authorized representatives of Discloser, and for any other purpose Discloser may hereafter authorize; and (c) it will deliver to Discloser, in accordance with any request from Discloser, all tangible embodiments of Discloser’s Confidential Information including copies, notes, packages, pictures, diagrams, computer memory media, and all other materials containing any portion of the Confidential Information. Nothing herein shall be construed as granting any property, license or use rights to any Confidential Information and Recipient shall not make, have made, market, use or sell any product or service using, incorporating, relying on and using the Discloser’s Confidential Information. Recipient agrees that any software of Discloser contains valuable Confidential Information and agrees not to modify, reverse engineer, decompile, create other works from or disassemble any such software without the prior written consent of the Discloser. In particular, the parties understand that each other’s Confidential Information may be considered material, non-public information under U.S. federal and state securities laws and either party could be found to be in violation thereof if it takes advantage of such information by (a) trading in the other party’s or any other party’s stock, or (b) furnishing information to others in connection with the trading of such stock. Recipient agrees to only permit access to Confidential Information to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.

TERM; PERIOD OF CONFIDENCE: This NDA is effective as of the Effective Date indicated above and shall terminate on the earlier of (a) the date on which either party receives from the other written notice that subsequent communications shall not be governed by this NDA; and (b) third (3rd) anniversary of the Effective Date. Recipient acknowledges that its obligations under this Agreement with regard to the Trade Secrets disclosed under this NDA shall remain in effect for as long as such in information shall remain a trade secret under applicable law. Recipient acknowledges that its obligations with regard to the Confidential Information disclosed under this NDA shall remain in effect for three (3) years after the execution of this Agreement.

INFORMATION NOT COVERED: Recipient will have no obligation with respect to >any portion of the Confidential Information which (a) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public; (b) was acquired by Recipient before receiving such information from Discloser and without restriction as to use or disclosure; (c) is hereafter rightfully furnished to Recipient by a third party, without restriction as to use or disclosure; or (d) is disclosed with the prior written consent of Discloser. Recipient may disclose Confidential Information pursuant to the requirements of a governmental agency or operation of law, provided that it gives Discloser reasonable advance notice sufficient to contest such requirement of discloser and shall only disclose the minimum amount of Confidential Information that Recipient is required to disclose by the applicable law or governmental agency.

OWNERSHIP:    Recipient  agrees  that  all  works  of  authorship  and  inventions, including  but  not  limited  to  products,  goods,  know-how,  trade  secrets  (as  defined  by applicable law) and other confidential and proprietary information, and any revisions thereof, in any form and in whatever stage of creation or development, arising out of or resulting from, or made using the Discloser’s Confidential Information (collectively the “Property”) are and shall not be the sole and exclusive property of the Discloser regardless of the identity of the author or creator of such Property. Recipient agrees to and does hereby assign all intellectual property rights in the Property to Discloser and agrees to execute such documents and provide such other assistance as the Discloser may reasonably request for the purpose of effectuating the rights of the Discloser herein.

NOT A PURCHASE CONTRACT: Nothing contained in this NDA shall be construed to obligate in any way either D&B or the Second Party to purchase or sell any goods or services or enter into any transaction whatsoever.

NO LICENSE GRANTED: Nothing in this NDA shall be construed to imply the grant of any license to Recipient to make, use or sell, or otherwise commercialize any portion of the Confidential Information disclosed by Discloser, except as otherwise expressly provided in this NDA.

WARRANTY  EXCLUSION:    The  parties  expressly  recognize  that Confidential Information is provided “AS IS”.   DISCLOSER MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE CONFIDENTIAL INFORMATION, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

NON-COMPETE: Second Party acknowledges that in addition to having no rights whatsoever with respect to confidential information obtained pursuant to this NDA, and further agrees that Second Party shall not, directly or indirectly, engage in any enterprise which may be deemed to be in competition with D&B or any business they operate for a period of one (1) year following the Effective Date of this NDA.

REMEDIES: Each party acknowledges that the unauthorized disclosure or use of Discloser’s Confidential Information by Recipient or a violation of the Non-Compete would cause irreparable harm and significant injury to Discloser, the degree of which may be difficult to ascertain. Accordingly, each party agrees that Discloser will have the right to obtain an immediate injunction enjoining any breach of this NDA, without the necessity of posting any bond or other security in such proceeding, any such requirement being hereby waived by the parties hereto; provided however that if the posting of a bond or other security is a prerequisite to obtaining injunctive relief, then a bond or security in the amount of One Million Dollars ($1,000,000) shall be sufficient.  Nothing contained herein shall limit Discloser’s right to any remedies at law, including the recovery of damages from Recipient for breach of this Agreement. The parties hereto acknowledge that they have relied on the provisions hereof in making their decision to disclose the confidential information hereunder and that neither party would have made such disclosures unless entitled to the protection of this provision.

ASSIGNMENT: D&B shall have the right to assign this NDA and its rights thereunder to a legal entity created and controlled by Drew Lofstad and Brian Cochrum. Otherwise, neither party shall assign or transfer any of its rights or obligations hereunder without the prior written consent of the other party, except in connection with either party’s reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of the assigning party.

CHOICE OF LAW: This NDA will be construed, interpreted, and applied in accordance with the laws of the State of Georgia (excluding its body of law controlling conflicts of laws).

NOTICE: Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed above or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, faxed or sent, whichever is earlier.

ENTIRE AGREEMENT: This NDA, and Exhibit A, if attached hereto, are the complete and exclusive statement regarding the subject matter of the NDA and supersede all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this NDA. This NDA may only be amended by a writing signed by the parties hereto. A waiver by either of the parties hereto of any breach by the other party of any of the terms, provisions or conditions of this NDA or the acquiescence of either party hereto in any act (whether commission or omission) which but for such acquiescence would be a breach as aforesaid, shall not constitute a general waiver of such term, provision or condition of any subsequent act contrary thereto.

COUNTERPARTS: FACISIMILE SIGNATURES: This NDA may be signed in counterparts, and delivered by facsimile, and such facsimile counterparts shall be valid and binding on the parties hereto with the same effect as if original signatures had been exchanged.
IN WITNESS WHEREOF, the parties hereto have executed this NDA by their duly authorized officers or representatives.

DREW LOFSTAD

BRIAN COCHRUM

SECOND PARTY – as signed by acceptance of online form submission.

EXHIBIT A

Information pertaining to all business activities of:

–       Brian Lee Cochrum

–       Drew Jason Lofstad

Information pertaining to design and production of services and products relating to, but not limited to, the production, sale, transportation and storage of hydraulic fracturing sand, other aggregates, and various other purposes; methods for manufacture, sales, delivery & logistics; business strategies; financing methodologies; and all other information related to their individual and corporate business interests.

Proprietary characteristics of portable aggregate supply system containers:

–       Portable, transportable containers

–       For hauling and storage of sand, other aggregates, and other purposes

–       Transportable via railcar, barge, & truck

–       Stackable in nature, design, & construction

–       Accessible via roll-off truck & wench systems, top-lift crane systems, and side-lift forklift systems

All names associated with the product including, but not limited to:

–       PASS Box

–       PASS Container

–       Portable Aggregate Supply System

–       Synergy Sands

–       Synergy Sands Supply System

Initials: signed by acceptance of online form submission.

EXHIBIT A RELATED TO “MUTUAL NON-DISCLOSURE AGREEMENT