Exhibit 10.43
CONFIDENTIALITY AND STANDSTILL AGREEMENT
This Confidentiality and Standstill Agreement (the "Agreement"),
dated as of June 1, 1994 (the "Effective Date"), is made by and between
Capital Associates, Inc. (the "Company") and Richard Kazan ("Kazan").
RECITALS
WHEREAS, Kazan desires to sell all of his shares of common stock of
the Company (Kazan's "Shares") to MCC Financial Corporation ("MCC");
WHEREAS, Kazan has agreed, in connection with the sale of his Shares,
to resign his position as a director of the Company and any subsidiaries and
affiliates of the Company of which he serves as a director;
WHEREAS, Kazan previously served as an officer of the Company;
WHEREAS, Kazan currently serves as a director of the Company and
Capital Associates International, Inc.;
WHEREAS, Kazan, by reason of his position as a director and formerly
an officer of the Company and Capital Associates International, Inc., a
wholly-owned subsidiary of the Company, is in possession of CAI Confidential
Information (as defined below) of, about and/or concerning the Company;
WHEREAS, Kazan has asked the Company to waive certain rights of the
Company under that certain Stockholders' Agreement, dated as of October 27,
1982, as amended from time to time (the "Stockholders' Agreement"), in order
to permit Kazan to complete the sale of his Shares to MCC; and
WHEREAS, the Company is willing to execute that certain Amendment to
Stockholders' Agreement, dated as of June 1, 1994, by and among the Company,
Kazan, Gary Jacobs and Jack Durliat (the "Amendment"), which Amendment grants
the waiver referenced in the immediately preceding WHEREAS clause provided
that (1) Kazan agrees to insure the strictest confidentiality of the CAI
Confidential Information as provided for herein, (2) Kazan agrees not to
purchase, directly or indirectly, for a period of 48 months immediately
following the closing of Kazan's sale of his Shares to MCC, (a) any stock of
the Company (or any successor thereto), (b) any option, warrant or other
right to acquire any stock of the Company (or any successor thereto), (c) any
debt or equity instrument that is convertible into or exchangeable for stock
of the Company (or any successor thereto) or (d) any other similar instrument
or contract right that is the financial equivalent of any right described in
(a), (b) or (c) of this sentence (the rights described in (a), (b), (c) and
(d) of this sentence are collectively referred to herein as "Stock").
NOW THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and the parties hereto
intending to be legally bound hereby, the parties to this Agreement agree as
follows:
1. The term "CAI Confidential Information" shall mean all
non-public information concerning the Company, its subsidiaries and its
affiliates that is in Kazan's possession by reason of his having been a
director and officer of the Company and certain of its subsidiaries and
affiliates, as well as a greater-than-20% shareholder of the Company, that
Kazan knows, reasonably should know or has reason to know is confidential or
proprietary to the Company.
2. Kazan hereby agrees that he will neither disclose to, nor
permit, any person or entity other than officers, directors, or agents of the
Company, its affiliates or its subsidiaries, to view any CAI Confidential
Information or its contents, nor will Kazan disclose any of the terms,
conditions or facts relating to the sale of his Shares to MCC; provided,
however, that the foregoing shall not prohibit Kazan from disclosing any CAI
Confidential Information or any part thereof if such CAI Confidential
Information is or becomes part of the public domain through no breach by
Kazan of this Agreement. Notwithstanding anything in this Agreement to the
contrary, Kazan shall not be liable for (a) any inadvertent or accidental
disclosure of the CAI Confidential Information if Kazan has exercised the
same degree of care as Kazan would take to preserve or safeguard his own
confidential or proprietary information or (b) any disclosure of any CAI
Confidential Information which (i) is within the public domain at the time of
disclosure, (ii) is or becomes publicly available without breach of this
Agreement by Kazan, (iii) is disclosed by Kazan with the written approval of
the Company or (iv) is required to be disclosed by Kazan pursuant to court or
government agency order.
3. The restrictions, conditions, limitations and obligations
imposed on Kazan under paragraph 2. of this Agreement shall be binding on and
enforceable against Kazan for a period of twenty-four (24) months immediately
following the closing of the sale of his Shares to MCC.
4. Kazan hereby agrees that he will not purchase, or otherwise
acquire, directly or indirectly, any Stock for a period of forty-eight (48)
months immediately following the closing of the sale of his Shares to MCC.
5. This Agreement may be executed in any number of separate
counterparts, each of which shall be an original, but all of which shall
constitute one and the same agreement. Each of the parties hereto agrees to
be bound by a facsimile copy of such party's signature on this Agreement to
the same extent as if the facsimile were an original. Each of the parties
hereto agrees to accept a facsimile copy of every other party's signature on
this Agreement in lieu of a fully executed original hereof.
6. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Colorado, without regard to the
principles thereof regarding conflicts of laws.
7. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision of the remaining provisions of this Agreement.
8. This Agreement constitutes and contains the entire agreement of
the parties and supersedes any or all prior negotiations, correspondence,
agreements and understandings between the parties respecting the subject
matter hereof.
9. Each party to this Agreement shall pay its own costs and
expenses, including legal and accounting fees, incurred in connection with
the negotiation of this Agreement and the consummation of the transactions
provided for herein.
10. This Agreement may be modified, amended or supplemented only by
duly authorized and executed written agreements, signed by all of the parties
hereto.
11. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any party
hereto without the prior written consent of the other parties, nor is this
Agreement intended to confer upon any other person, except the parties
hereto, any rights or remedies hereunder.
12. The parties hereto agree that the remedy at law is inadequate,
and that any party hereto shall be entitled to specific performance in
addition to any other remedy he/it may have, in the event of a breach of this
Agreement. Each party hereto waives the defense that there is an adequate
remedy at law in the event of an action for specific performance of any
rights hereunder.
13. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, upon receipt, or
if mailed by registered or certified mail (return receipt requested), postage
prepaid, on the fifth business day after mailing. Notice to any party
hereto, if mailed, shall be to the following addresses (or to any other
address that a party may designate by notice to the other parties hereto):
If to Kazan: Mr. Richard Kazan
705 Via LaCuesta
Palos Verdes Estates, CA 90274
Telecopy: (310) 375-4840
If to the Company: Capital Associates, Inc.
7175 West Jefferson Avenue
Suite 3000
Lakewood, CO 80235
Telecopy: (303) 980-7065
With a copy to: John L. Ruppert, Esq.
Ballard Spahr Andrews & Ingersoll
1225 17th Street, Suite 2300
Denver, CO 80202
Telecopy: (303) 296-3956
14. In the event of a dispute between the parties arising out of
this Agreement, it is further agreed that a court may award to the prevailing
party in such dispute reasonable attorneys' fee in addition to costs of suit
incurred by the prevailing party.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the Effective Date.
CAPITAL ASSOCIATES, INC.
By: /s/Dennis Lacey
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Dennis Lacey
Title: CEO
/s/Richard Kazan
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Richard Kazan