Ladies and Gentlemen:

Marsh Creek Advisors LLC, a Georgia limited liability company (“MCA”), has been engaged to advise its client (the “Company”) with respect to a possible transaction with you or one of your affiliates (collectively, “you”) involving the prospective purchase of the securities, assets or business of the Company (a “Transaction”). In connection with your consideration of a Transaction, the Company or its representatives is prepared to furnish you and your Representatives (as defined below) with confidential and proprietary information concerning the Company’s business, operations, and properties. All such information, oral or written, electronic or otherwise, regardless of when such information was received and regardless of the medium or method by which you or your Representatives have received it, including all notes, summaries, analyses, compilations, studies, interpretations or other material derived therefrom will constitute “Evaluation Material.”

WHEREAS, the Parties desire to engage in discussions for the purposes of exploring (including negotiating and consummating) a possible business transaction involving the Parties (the “Evaluation”);

WHEREAS, in connection with the Evaluation, the Parties will be given access to Confidential Information (as defined below) relating to each other’s businesses and affairs; and

WHEREAS, the Parties wish to set forth their understanding with respect to the provision, retention and return of such Confidential Information during and after the Evaluation.

NOW, THEREFORE, in consideration of the promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Evaluation Material; Confidentiality: To maintain the confidentiality of the Evaluation Material, you and each individual or entity that receives Evaluation Material on your behalf, including, without limitation, your officers, directors, managers, partners, shareholders, members, employees, advisors, financing sources, counsel, affiliates, insurers, representatives and agents (collectively, such parties, your “Representatives”) agree: (i) to keep the Evaluation Material confidential at all times; (ii) not to use any Evaluation Material except to evaluate a Transaction and negotiate the terms thereof; (iii) not to make any direct or indirect inquiry about the Company or its business, operations or properties to any known customer, insurer, supplier, vendor, creditor, competitor, employee or agent of the Company without the Company’s prior written consent, other than inquiries made in the ordinary course of business unrelated to the Evaluation Material or the Transaction; (iv) not to disclose the name of the Company, that the Company may be considering a Transaction with you or any other party, that Evaluation Material has been made available to you or any other party, that you or your Representatives have inspected any Evaluation Material, or that you or any other party have had or will have any discussions with the Company in respect of a Transaction (all such information will also constitute “Evaluation Material”); and (v) not to directly or indirectly disclose, disseminate, publish, communicate or make available any Evaluation Material other than to those of your Representatives with a strict need to know such information for the express purpose of assisting you in your evaluation and negotiation of a Transaction; provided, that such Representatives shall have agreed to be bound by the terms of this Agreement; provided, further, that you will be responsible for any breach of this Agreement by you or any of your Representatives, which includes enforcing this Agreement against them.
2. Termination; Return or Destruction of Evaluation Material: The Company (directly or through MCA or the Company’s counsel) may at any time terminate any discussions that it, the Company’s counsel or MCA might have with you in respect of a Transaction. In connection with any such termination, your and your Representatives’ access to Evaluation Material will be terminated. In that event, you and your Representatives will promptly (and in any case within ten (10) business days of the Company’s written request to you, which may be made through MCA or the Company’s counsel and by e-mail) return to the Company or destroy, at your option, all Evaluation Material and confirm in writing to the Company that all such material has been returned or destroyed in compliance with this Agreement; provided, that you and your Representatives may retain, in a secure location, one copy of such documents and records as is required to be retained pursuant to any law (including regulatory requirements) or bona fide automatic back-up system to which you or your Representatives are subject; provided, further, that any such copy so retained shall be held in compliance with the terms of this Agreement for the duration of its retention. No such termination, return or destruction will affect your or your Representatives’ obligations under or with respect to this Agreement. Neither the Company, the Company’s counsel nor MCA will have any liability to you or your Representatives in respect of any termination of Transaction discussions with you, any changes to, or termination of, the process or procedure by which the Transaction will be considered or engaged, any competitive process engaged in by you or your Representatives for purposes of considering or completing a Transaction, or any termination of your or your Representatives’ access to Evaluation Material.
3. Privilege: The Company does not intend to waive, or to cause any of its representatives to waive, any attorney-client, work product or other applicable privilege of the Company (any of the foregoing, a “Privilege”) by providing any Evaluation Material subject to a Privilege, and any production by the Company or any of its representatives of such information shall be inadvertent. Accordingly, you agree that a production to you or any of your Representatives by the Company or any of its representatives of Evaluation Material protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request by the Company or any of its representatives, you shall, and shall cause your Representatives to, immediately return or destroy such inadvertently produced Evaluation Material.
4. Exclusions from Evaluation Material; Dual Hat Employees: Evaluation Material will not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement; (ii) was available to you prior to its disclosure by the Company or its representatives (including MCA and the Company’s counsel), provided that the source of such information was not, to your knowledge, bound by any confidentiality agreement with, or any duty or obligation of confidentiality to, the Company in respect thereto; (iii) becomes available to you from a source other than the Company or its representatives (including MCA and the Company’s counsel), provided that the source of such information was not, to your knowledge, bound by any confidentiality agreement with, or any duty or obligation of confidentiality to, the Company in respect thereto; or (iv) is independently developed by you or your Representatives without the use of or reference to Evaluation Material (as demonstrated by your and their written records, as applicable). The parties acknowledge that certain of your employees, directors, officers or Representatives may serve as directors or officers of portfolio companies managed by you (“Dual Hat Employees”), and such portfolio companies shall not be deemed to have been provided with Evaluation Material, and thus shall not be restricted by your obligations under this Agreement, solely due to the service of any Dual Hat Employee so long as (a) no Evaluation Material is shared with or made available to such portfolio company or any other non-Dual Hat Employee; (b) the Dual Hat Employee does not use any Evaluation Material in the performance of his, her or its duties or responsibilities to any such portfolio company; and (c) such portfolio company does not (I) use any Evaluation Material in the operation of its business, or (II) act at the direction of or with encouragement from you or any Evaluation Material with respect to any matters contemplated hereby.
5. Required Disclosure: If you or your Representatives are required by law, regulation, rule, or legal or regulatory process (including, without limitation, oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Evaluation Material, you shall, to the extent not legally prohibited, provide the Company with prompt written notice of such request or requirement so that the Company may seek an appropriate protective order and/or waive compliance with the provisions of this Agreement, and you and your Representatives agree to reasonably cooperate with the Company, at the Company’s cost, to obtain an appropriate protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, you or your Representatives are, on the advice of your or your Representatives’ counsel, as the case may be, legally required to disclose Evaluation Material, you or your Representatives, as applicable, may disclose only that portion of such Evaluation Material that you or your Representatives are legally required to disclose; provided, that you and your Representatives shall use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material. Notwithstanding the foregoing, you and your Representatives who are regulated may, without the consent of the Company, disclose Evaluation Material to your or their respective regulators in response to requests or examinations not targeted at the Company, the Evaluation Material, or the Transaction.
6. Communications: MCA will arrange for appropriate contact between you (including your Representatives) and the Company for due diligence purposes. Unless otherwise agreed to by the Company in writing, all (i) communications regarding any possible Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures in connection with any possible Transaction, in each case will be submitted or directed exclusively to MCA or the Company’s counsel, as applicable or appropriate.
7. Non Solicitation: For the 24-month period following the date hereof, you and your Representatives will not, directly or indirectly, solicit for employment or hire any officer, director, manager or employee of the Company or any of its subsidiaries or affiliates, except that you or your Representatives shall not be precluded from hiring any such officer, director, manager or employee (each such individual, a “Restricted Party”) (i) who initiates discussions regarding such employment without any direct or indirect solicitation by you or your Representatives, (ii) who responds to any public advertisement placed by you, your Representatives or any recruiting firm not targeted (directly or indirectly) at a Restricted Party, or (iii) whose employment has been terminated with the Company, its subsidiaries or its affiliates prior to commencement of employment discussions between you or your Representatives and such officer, director, manager or employee.
8. No Company Representations or Warranties: You understand and agree that, except as may be expressly provided for in an executed Transaction Agreement (as defined below), none of the Company, its counsel, MCA, or their respective affiliates or representatives make any representations or warranties, express or implied, with respect to any of the Evaluation Material, including as to the accuracy or completeness thereof, or any Transaction completed by the parties. You also agree that, except as may be expressly provided for in an executed Transaction Agreement, none of the Company, its counsel, MCA, or their respective affiliates or representatives assumes any responsibility or has any liability to you or your Representatives resulting from your or your Representatives’ review, consideration or use of the Evaluation Material, or any errors or omissions in respect thereto.
9. No Other Obligation: You acknowledge and agree that no contract or agreement providing for any Transaction shall be deemed to exist between you and the Company unless and until you and the Company execute and deliver a final definitive agreement relating thereto (a “Transaction Agreement”), and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Transaction unless and until you and the Company shall have executed and delivered a Transaction Agreement. You further acknowledge and agree that: (i) unless and until you and the Company shall have executed and delivered a Transaction Agreement, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this Agreement except for the matters specifically agreed to herein; (ii) the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or your Representatives with regard to a Transaction, and to terminate discussions and negotiations with you or your Representatives at any time, for any reason; and (iii) the Company shall be free to establish and change any process or procedure with respect to a Transaction as the Company in its sole discretion shall determine (including, without limitation, negotiating with any other interested party and entering into a Transaction Agreement with any other party without prior notice to you or any other person).
10. Remedies: It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that the Company shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach, and you further agree to waive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies available at law or equity to the Company. In the event of litigation relating to or arising from this Agreement, if a court of competent jurisdiction determines that either party breached this Agreement, then the breaching party shall be liable to and shall pay the non-breaching party the reasonable legal fees, costs and expenses incurred by the non-breaching party in connection with such litigation, including any appeal therefrom.
11. No Waiver; Severability: No failure, delay or partial exercise of any right, power or privilege under this Agreement will operate as a waiver of any such right, power or privilege. Wherever possible, each provision of this Agreement will be interpreted to be effective and valid under applicable law. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision of this Agreement, and this Agreement will be reformed, construed and enforced as though the invalid, illegal or unenforceable provision had never been contained herein.
12. Miscellaneous: This Agreement: (i) will terminate on its second anniversary or the date on which a Transaction is consummated, whichever occurs first in time, provided that nothing in this Agreement shall limit the protection offered or afforded to trade secrets under applicable law; (ii) will be governed by the internal laws of the State of Georgia, without giving effect to any choice or conflict of law provision or rule; (iii) may not be amended, modified, or supplemented except in writing, signed by each party; (iv) may not be assigned by any party without the prior written consent of the other; (v) shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns; (vi) may be executed in multiple counterparts and exchanged electronically, with each such electronic copy constituting an original copy of this Agreement, binding on each party; (vii) shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted; and (viii) constitutes the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such subject matter. The Company and its equity holders and affiliates are third party beneficiaries of this Agreement and shall have the right to enforce its terms. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. Each party represents and acknowledges that it has the power and authority to enter into this Agreement.